"The final and most wide-reaching cause for undertaking wars on behalf of others is the mutual tie of kinship among men, which of itself affords sufficient ground, for rendering assistance. ‘Men have been born to aid one another,’ says Seneca." H. Grotius, De Jure Belli ac Pacis Libri Tres, Bk. I, Chap. XXV. Sec. VI.

This article is motivated primarily by the failures of the UN, States and the whole international community to intervene either to prevent or stop the genocide that occurred in Srebrenica and in Rwanda in 1994 despite the fact that the UN peacekeeping forces were present there. Also, the article is motivated by the violations of right to life of the civilians that occurred in Kosovo in 1999 and the belated deployment of UN peacekeeping forces in East Timor in 1994 after there were reports of breaches of right to life of civilians following the public consultation for self–determination of the people of East Timor.

Although the UN Charter prohibits the use of force in international relations and international Law demands that States respect the principle on non-intervention and State sovereignty, however, whenever and wherever human rights and humanitarian Law are violated on a scale that does not amount to genocide or mass killings, the UN, all the States and the entire international community have the right and duty arising from obligation erga omnes of the principles of human rights and humanitarian Law to intervene without force to protect their legal interest by resorting to all peaceful remedies that are available under international Law. However, when the civilian population is faced with a danger of genocide or mass killings, or when they are already victims of these crimes and all peaceful remedies have been exhausted, we maintain that it is logical to conclude that the UN and all States have the right and duty to intervene militarily to prevent or stop these crimes whenever and wherever they occur. We shall, in this article, argue for this position.

This article is also our contribution to the ongoing debate on United Nations’ Humanitarian Intervention to protect Civilians in armed Conflict versus the duty to respect State Sovereignty. We wish to argue that in contemporary international law the obligation erga omnes of the principles of human and humanitarian Law is the legal basis for humanitarian intervention. Consequently, in the event of genocide or mass killings, all States and the UN have the right and duty to intervene to protect the civilian population irrespective of their duty to respect the sovereignty of the offending State, the principles of non-use of force and non-intervention.

Legitimisation of humanitarian intervention will require a reform of the UN Charter and the UN. It would also require a reform of the UN Organisation and some of its purposes and principles contained in Chapter 1 of the UN Charter especially those dealing with use of force; a reform of the collective security system; the non-military and military interventions stipulated under chapter VII which deals with Action with respect to threats to the peace, breaches of the peace, and acts of aggression, and the roles the UN Security Council and the Members of the UN with regard to maintenance and restoration of international peace and security etc.

Any reform of the Charter must take into consideration, developments that have taken place in international law since the UN Charter was drafted. One of these developments is the emergence in international law of obligation erga omnes of principles of human rights and humanitarian Law. Thus any reform of the Charter will require the codification of international Law.

It will also require a progressive development of international Law so that it can respond to the needs of the modern international community. This will require doctrinal contributions from international Lawyers. This point has been expressly stated by the Pope. Thus the Pope, having given support for humanitarian intervention under specified conditions in paragraph 12 of his Message for the Celebration of the World Day of Peace 1 January 2000 stated: "This opens a new field of reflection and discussion both for politics and for law, a field which we all hope will be earnestly and wisely cultivated. What is needed without delay is a renewal of international law and international institutions, a renewal whose starting-point and basic organising principle should be the primacy of the good of humanity and of the human person over every other consideration. Such a renewal is all the more urgent if we consider the paradox of contemporary warfare in which, as recent conflicts have shown, armies enjoy maximum security while the civilian population lives in frightening situations of danger. In no kind of conflict is it permissible to ignore the right of civilians to safety."

Likewise, the UN Secretary-General in his Statement on Receiving the Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda 16 October 1999 stated: As the Report itself acknowledges, some steps have already been taken over the past years to improve the capacity of the United Nations to respond to conflicts, and specifically to respond to some of the mistakes made in Rwanda. But much remains to be dome. It was precisely in the hope of preventing further such tragedies that, in my address to the General Assembly in September, I called on the international community to reflect on ways in which the United Nations could intervene more promptly and more effectively, to prevent or halt massive and systematic violations of human rights."

There is therefore need to move from lex lata to lex ferenda order to make suggestions for the renewal of the UN. This is the main purpose of this work which is our humble contribution to the forthcoming millennium Summit.

In "Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda," the Inquiry made the following recommendation for action: An intensified dialogue should be established between the Secretariat and the Security Council on the need for preventive action, and when necessary, on the need for enforcement measures to counteract genocide and other massive human rights violations in the future."

Further, the Inquiry stated: The Inquiry recommends that action be taken to improve the capacity of the United Nations to conduct peacekeeping operations, and in particular to ensure the sufficiently rapid deployment of missions into the field. The issue is not a new one, and similar recommendations have been made by other bodies, but while the need has been repeated many times, the problem remains. The United Nations remains the only organisation which can bring global legitimacy to peacekeeping efforts. Important initiatives can be taken at the regional level, but the United Nations must be prepared and willing to exercise the responsibility for international peace and security enshrined in its Charter, no matter where the conflict. The Inquiry hopes that the Secretary-General and the Member States of the Organisation will use the opportunity provided by the Millennium Summit and Assembly to mobilise the political will necessary to solve the current problems facing United Nations peacekeeping, to look clearly at the challenges ahead, at what needs to be learnt from past failures, including in Rwanda, and what can be done to meet the challenges of tomorrow.

It is also aimed at contributing to the report which the UN Secretary-General is required to submit by 30 March 2001 on the protection of civilians in armed conflict in accordance with paragraph 25 of the UN Security Council resolution 1296 (2000) S/RES/1296(2000) of19 April 2000. Its main purpose is to offer our views on the on-going debate on the question of UN military intervention to protect civilians when faced with threat of, or actual mass killings or genocide vis-à-vis the duty to respect State sovereignty.

Finally this article marks the occasion of the United Nations General Assembly Millennium Summit, which had the objective of providing "an opportunity to strengthen the role of the United Nations in meeting the challenges of the twenty-first century." The UN Secretary –General rightly stated: "As we prepare for the Millennium Summit, we must reaffirm our founding purposes. But we must also think imaginatively how to strengthen the United Nations so that it can better serve states and people alike in the new era." In order to ensure that the UN or States intervene to protect civilians against genocide or mass murder, it is necessary to modify the UN Charter so that it can respond to the challenges of the modern times. To this end, we have made a number of recommendations at the end of the article.

We shall discuss the following: (1)Definition of terms; (2) jurisprudence of International Court of Justice (ICJ) on obligation erga omnes of principles of human rights and humanitarian Law; (3) doctrine on obligation erga omnes of human rights and humanitarian Law; (4) legal consequences of the obligation erga omnes of human rights and humanitarian Law; (5) objection to the norm of obligation erga omnes of human rights (6) right of all States to humanitarian intervention vis-à-vis genocide and mass killings. (7) recommendations.

The word "obligation" is derived from the Latin word ''obligatio'' which means "a bond" or "a tie.'' "Obligation" in law means "a legal duty," "that which a person is bound to do or forbear; any duty imposed by law...." In short "obligation" means a legal duty to perform or abstain from performing, a certain action.

The Latin word "erga" means "towards" or "in relation to" while "omnes" – the substantive plural of the word "omnis" signifies "all," "every," "whole," – means "all men.'' Therefore the phrase "obligation erga omnes" literally means a legal duty to perform or to abstain from performing, a certain action towards all men.

Obligation erga omnes of principles of human rights and humanitarian Law means the legal duty to fulfil and respect the obligations arising from human rights and humanitarian Law owed to all men and also to all States and to the international community as a whole - arising from the erga omnes rights deriving from the legal interest of all States and of the international community as a whole, that the principles of human rights and humanitarian law be observed by all and everywhere - by every State, every group of persons and every individual.

Humanitarian intervention is a military intervention within the territory of a sovereign State without the authorisation of the UN Security Council undertaken on humanitarian grounds by a State or a group of States in order to prevent or stop massive violations of human rights of the subjects of the target State. For the purpose of this article, we define "humanitarian intervention" which we are proposing here, as the use of force - with the authorisation of the UN Security Council - by a State or a group of States or forces established by UN member States, in order to prevent or stop mass killings or genocide. The concept of "humanitarian intervention" with which we are concerned here has to do with using force without the consent of a sovereign State in order to prevent or stop mass murder or genocide being perpetrated within its territory. The type of humanitarian intervention which we are proposing here does not include military intervention without the authorisation of the UN Security Council nor does it include any other type of armed on humanitarian grounds for example to relieve human suffering that is not mass killings or genocide. It should be noted that the by the term "genocide" as used here we mean killing of members of ethnic, racial, or religious group.

Some authors like B. Conforti explain sovereignty as independence and this is independence is synonymous with external sovereignty. This means that it is necessary that the organisation of government does not depend on another State. He later affirmed that a State is independent and sovereign whose law is original and draws its juridical force from its own constitution and not from the law, or the constitution of another State.

Oppenheim’s international Law states that sovereignty "is supreme authority, which on the international plane means not legal authority over all other states but rather legal authority which is not in law dependent on any other earthly authority," while in the strict and narrowest notion of the term it means "independence all round, within and without the borders of the country."

According to the Blacks Law Dictionary, "In the intercourse of nations, certain States have a position of entire independence of others, and can perform all those acts which it is possible for any State to perform in this particular sphere. The same States have also entire power of self-government; that is, of independence upon all other States as far as their own territory and citizens not living abroad are concerned. No foreign power or law can have control except by convention. This power of independent action in external and internal relations constitutes complete sovereignty." Thus, the essence sovereignty is independence of a State from any other State.

The concept of sovereignty in international Law has three main aspects namely: external, internal and territorial. The external sovereignty is the right of every State to freely determine its relation with other States or other entities without any control of another State. The internal sovereignty of State is the exclusive right of the State to determine the nature of its own institutions, to ensure their operation, to enact laws as it deems necessary and also ensure their observance. The territorial sovereignty is "the complete and exclusive authority which a State exercises over all the persons and things found on, under or above its territory."

It should be emphasised that all these rights inherent in the concept of sovereignty are limited by and subject to international obligation arising from the obligations to respect human rights arising from human rights treaties, customary international Law and the general principles of Law recognised by civilised nations, by obligations erga omnes of human rights and by norms of jus cogens. This means that these rights inherent in sovereignty of States must be exercised in accordance with International Law.

Respect for the territorial sovereignty of the State implies that no other State should use force against the will of another State within its territory. Such use of force will constitute a breach of the principle of respect for the territorial sovereignty of the State. Since the principles of respect the territorial sovereignty of State, non-use of force and non-intervention are interconnected, a violation of one principle will inevitably constitute a breach of others. Thus the ICJ in the Nicaragua Case stated: "The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention."

Although every military intervention violates the sovereignty of the State, however as we shall argue later there is right to humanitarian intervention when a State or a warring party carries out genocide or mass killings.

In this section, we shall undertake an analysis of the judgements of the ICJ on human rights cases in order to expose their contribution to the determination of the existence of the norm of obligation erga omnes of principles of human rights and humanitarian Law in the contemporary international Law. To this end we shall analyse the following cases in their chronological order: (1) the Corfu Channel Case (United Kingdom v. Albania) (1949), (2) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion (1951), (3) South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) 1962, (4) South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase) 1966, (5) Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) 1970, (6) Case concerning military and paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America. (Merits) 1986.

In its judgement on the Corfu Channel case, (United Kingdom v. Albania), 1949, the ICJ, after having examined the facts and observations relevant to the case, found Albania guilty for her failure to notify the British warships of the existence of the minefield whose explosion led to the damage and loss of human life. The Court went on to affirm that such obligations are not based on the Hague Convention of 1907, No. VIII, which is in force in time of war, "but on certain general and well-recognised principles namely: elementary considerations of humanity, even more exacting in peace than in war."

By refusing to base Albania's international responsibility on the Hague Convention of 1907 which is a humanitarian convention applicable in time of war, but rather on the "general and well recognised principles" which the Court called 'elementary considerations of humanity,' the Court meant that "elementary considerations of mankind" are binding irrespective of any convention which may embody them. This means that what the Court described as "elementary considerations of mankind" create obligations erga omnes.

That the "elementary considerations of humanity," as used by the ICJ are non-consensual is affirmed by Koskenniemi who maintained that "to regard the reference by the ICJ to "elementary considerations of humanity" as references to consensual norms is contrary to the intention of ICJ whose purpose in employing such norms is to restrict the wills of states."

Having established that the "elementary considerations of humanity" are binding erga omnes, we shall now consider the basis of these elementary considerations of humanity, which create obligations erga omnes according to the jurisprudence of the ICJ under consideration. Some authors affirm that they are based on human rights norms, which is also my position. For example, in their work International Law Cases and Materials, Henkin, Pugh, Schachter and Smith maintain that 'elementary considerations of humanity' may also be based today on the provisions of the United Nations Charter on human rights, the Universal Declaration of Human Rights, and the various Human Rights Conventions." Brownlie, in the last edition of his work, Principles of Public International Law, maintains that in recent years the provisions of the Charter on human rights and fundamental freedoms are accepted as "a more concrete basis for considerations of humanity."

The position of these authors is in accordance with the jurisprudence of the ICJ. As the Court stated in its decision, Albania was responsible for the damage and loss of human life, which was caused by the explosion which, took place on October 22nd, 1946 in Albanian waters. The Court therefore identified the nature of the international obligation breached by Albania, which consisted in her violation of human rights to life and property. It is the breach of these human rights, which are protected by the principles of "elementary considerations of humanity", that led to the international responsibility of Albania. Therefore, it is right to conclude that "elementary considerations of humanity" are based on principles of human rights and fundamental freedoms which are found in the provisions of the human rights instruments and that they create obligations erga omnes vis-à-vis all the States.

Implicit in the Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide is the conflict between humanitarian principles which have the character of obligation erga omnes and the freedom of states arising from their sovereignty. The Court sought to argue for the obligation erga omnes of the humanitarian principles which the Convention was meant to protect in order to prevent the States from making reservations, which might undermine the object and purpose of the convention, destined to have universal binding effect.

The Court argued that from the genesis of the Convention, it was the intention of the United Nations "to condemn and punish genocide as 'a crime under International Law' involving a denial of the right of existence of entire human groups." Such a denial according to the Court "shocks the conscience of mankind and results in great losses to humanity." It is opposed to the moral law and to the spirit and objectives of the United Nations.

The Court then went on to draw two consequences arising from the foregoing affirmations. The first is the affirmation of obligation erga omnes of the humanitarian principles, which the Convention was meant to express. Thus, the Court stated: "the principles underlying the convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation".

The following conclusions can be drawn from this affirmation of the Court. First, the mere fact that these principles are recognised by States as binding even without convention shows that they have a character of obligation erga omnes which does not depend on the consent of States. Secondly, there is a reference to general principles of law contained in article 38 paragraph 1 (c) of the Statute of ICJ as the source of obligation erga omnes. Thirdly, the object of this obligation is the human right to life, which in this case is the right to life of a whole group of persons. It follows from the above, that human right to life is among the general principles of Law recognised by civilised nations as binding on States even without conventional obligation.

The second consequence drawn by the Court is the universal character of the condemnation of genocide and the necessary co-operation of all states to prevent it. Thus the Court affirmed: "The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope.'' This desire to ensure the universal ratification of the genocide convention shows the implicit recognition by both the general assembly and by the contracting parties, of the universal character of the obligation arising from the purpose of the convention, namely the need to ensure universal protection of the human right to life.

The Court then went on to state that the objects of the convention which are humanitarian and civilised and the contracting states have one common interest which is "the accomplishment of those high purposes which are the raison d'être of the convention." The Court therefore affirmed that the object and purpose of the convention "limit both the freedom of making reservations and that of objecting to them." All this suggests that the right to life, which is the object of the Convention, creates obligation erga omnes.

In his dissenting "Opinion to the judgement of the Court", Alvarez argued that because the genocide convention is one of those modern conventions that seek to regulate matters of humanitarian interest in order to improve the position of individuals, it ought to be binding upon all States even if they have not expressly accepted them. Such conventions, he argued, establish a binding custom or principles that must be observed by all States because of their interdependence. There is, implicit in the arguments of Alvarez, a recognition of obligation erga omnes of humanitarian and human rights conventions, which are meant to protect the human person and his rights.

This recognition of the existence a of common humanitarian interest which demands protection by all States is a precursor to the recognition by the ICJ in the Case concerning the Barcelona Traction, 1970 of the obligations of a State towards the international community as a whole with regard to the principles and rules concerning the basic rights of the person among which is the right to life of a group of persons. Such obligations are therefore among those, which create obligations erga omnes.

The ICJ in this Advisory Opinion attempted to reconcile the obligation erga omnes arising from the humanitarian principles underlying the Genocide convention with the freedom of States, which is a corollary of their sovereignty. However, the important point we want to demonstrate is that there is a recognition by the ICJ that humanitarian principles – among which is the right to life - create obligation erga omnes even without convention. Later in the Barcelona Traction Case, as we shall see, the Court will, in an obiter dictum, expressly affirm the obligation erga omnes of principles and rules of human rights.

In the South West Africa Cases, 1962, Ethiopia and Liberia instituted a suit before the ICJ accusing South Africa, among other things, of practising apartheid and violating the rights and liberties of the inhabitants of the territory under her mandate. South Africa, among other preliminary objections, argued that both Ethiopia and Liberia have no legal interest since neither the material interests of either of the governments of Ethiopia and Liberia nor that of their nationals were involved or affected. Therefore she argued that they have no locus standi to institute any legal action before the ICJ.

The ICJ rejected South Africa's objection and maintained that, in accordance with the mandate, any member of the League has a legal interest in its observance and therefore has the right to institute a legal action before the ICJ. In the words of the Court: "The right to take legal action conferred by article 7 on member States of the League of Nations is an essential part of the mandate itself and inseparable from its exercise.''

Although Judge Jessup was in agreement with the decision of the Court, he found it necessary however to deliver his own separate opinion in order to reinforce the decision of the Court. His arguments are an important contribution to the clarification of the existence of the norm of obligation erga omnes of human rights in the contemporary international Law. First, he argued that for a long time International Law has recognised that States can have legal interests in issues, which do not affect their financial, economic, or other "material," or say "physical" or "tangible" interests. He maintained that an exemplification of this principle of International Law is seen in the right of a State to be concerned on general humanitarian grounds with atrocities affecting human beings in another country. The legal bases of the assertion of such interests, he maintained, were sometimes conventions and in other cases the general principles of International Law. It is noteworthy that, as Judge Jessup rightly affirmed, general principles of International Law constitute one of the grounds for assertion of legal interest in matters involving obligation erga omnes. Equally States have claimed legal interest in the observance of International Law. He also maintained that Conventions have specifically recognised the legal interests of States in general humanitarian causes and have often instituted a procedural means to enable States to secure respect for these interests.

He affirmed that a State may have a legal interest in observance, in the territories of another State, of general welfare treaty provisions in another State and may claim such interest without any damage "upon its own nations or its direct so-called tangible or material interests." He therefore concluded that it is not surprising that as far back as 1920, it was the intention of States to recognise and provide for a "legal" interest of States in questions which did not directly affect their material interests or those of their nationals, and such was the case with the mandate systems.

This recognition by the ICJ of the right to legal action to protect a common interest is a prelude to the later affirmation by the ICJ in the Barcelona traction case that all states can be said to have legal interest in the protection of obligations erga omnes including those arising from basic rights of the human person and "protection from ... racial discrimination."

The contribution of the ICJ here to the determination of the norm of obligation erga omnes lies in its recognition of the right of any member of the League of Nations to institute a legal action against any mandatory State that breached human rights provisions of the mandate.

The Barcelona Traction Case – in which the question among other things was the right of Belgium to exercise the diplomatic protection of the shareholders from Belgium in the Barcelona Traction company which had suffered economic harm because of the conduct of the various organs from Spain against that company, is important because it was the first time the ICJ explicitly affirmed the erga omnes obligations of the principles and rules of basic rights of the human person. The Court, in an obiter dictum, made a distinction between obligations arising for a State towards the international community as a whole and those arising for a State from the rule of diplomatic protection. Because of their very nature "the former are the concern of all States." On account of the rights involved, the Court affirmed that "all States can be held to have a legal interest in their protection; they are obligations erga omnes."

The Court then went on to give examples of those norms that generate obligation erga omnes in the contemporary International Law which are outlawing the acts of aggression, and of genocide, "as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.'' It noted that "some of the corresponding rights of protection have entered into the body of general International Law,'' while "others are conferred by international instruments of a universal or quasi-universal character.''

The Court went on to explain further the difference between the obligations erga omnes and those arising from diplomatic protection, affirming that it cannot be maintained that, when any of such obligation is in question, "all States have a legal interest in its observance.''

Later on in the text, the Court stated that the instruments which protect those rights on universal level do not grant States the capacity to protect anyone whose rights are infringed irrespective of his nationality except on the regional level.

This text has given rise to various interpretations by authors. For example, the International Law Commission stated that "this passage has been the subject of differing interpretations but it seems unquestionable that, by making such affirmations, the Court sought to draw a fundamental distinction with regard to international obligations and hence with regard to acts committed in breach of those obligations." "In addition," it continued, "it implicitly recognised that that distinction should influence the determination of subjects entitled to invoke State responsibility." The Commission further stated: "In the Court's view, there are in fact a number, albeit limited, of international obligations which by reason of shared importance to the international community as a whole, are - unlike the others - obligations in respect of which all States have a legal interest. It follows, the Court held, that the responsibility flowing from the breach of those obligations is entailed not only with regard to the State that has been the direct victim of the breach (e.g., a State which has suffered an act of aggression in its territory), but also with regard to all the other members of the international community." "Every State," it concluded "even if it is not immediately and directly affected by the breach, should therefore be considered justified in invoking the responsibility of the State committing the internationally wrongful act."

The American Law Institute stated: "The Court seemed to distinguish diplomatic protection in general, including protection for ordinary violations of human rights, which is available only for nationals of the complaining State... from protection against violations of the 'basic rights of the human person' ... as to which 'all States can be held to have a legal interest in their protection.'"

Mr. Ago affirmed that the International Court of Justice "had wished to distinguish between certain categories of obligations whose 'breach' harmed the interests of all States." "Clearly," he continued, "if a State denied the vessel of another State passage through its territorial waters, it harmed the interest of only one State." But if a State committed an act of aggression, it violated "not only the rights of the State which was the victim of the aggression, but the rights of all members of the international community, since the maintenance of peace was an interest of the entire international community."

The first obvious fact is the establishment by the Court of the existence of distinction in the contemporary International Law of some obligations erga omnes owed to the international community as a whole arising inter alia from the "principles and rules concerning the basic rights of the human person.'' All States have a legal interest in the protection of these basic rights of the human person because of their importance, as different from the other rights whose obligations arise from the rule of diplomatic protection.

This distinction which the Court has made between the obligations arising for the State vis-à-vis the international community as a whole and that arising for it vis-à-vis another State is the essential difference between obligation erga omnes and the ordinary bilateral obligation which International Law has known up till then. It is in this distinction that lies the novelty of the doctrine of obligation erga omnes of human rights. These obligations are no more bilateral, that is, owed by one State towards another, but rather they are owed to all States. This is not based on the traditional rule of diplomatic protection whereby States have the obligation only to protect the rights of their own nationals when they are violated by another State. Explaining the rule of diplomatic protection Oppenheim's International Law stated: "...where it is a private person (either natural or legal) who has suffered injury, a State wishing to establish its locus standi to present a claim on account of that injury must show that the person concerned was its national.... It is the bond of nationality which establishes the connection between the injury suffered by a private person and the right of the State to seek redress."

To throw more light on this point it is pertinent to look at the jurisprudence of the International Tribunals on the rule of diplomatic protection. In the Mavrommatis Palestine Concessions Case (1924), the PCIJ stated: "It is an elementary principle of International Law that a State is entitled to protect its subjects, when injured by acts contrary to International Law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of International Law." In the Case of the Panevezys- Saldutiskis Railway, (1939) the Permanent Court of International Justice stated: "In the opinion of the Court, the rule of International Law on which the first Lithuanian objection is based is that in taking up the case of one of its nationals by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of International Law. This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of International Law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse." In the Reparation for injuries suffered in the Service of the United Nations, 1949, the ICJ states that the traditional rule of diplomatic protection "rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach."

As can be seen from the above statements of the international tribunals, it is only the State whose nationality the injured person possesses that has the right to take legal action to vindicate the right of its national and the defendant State has the obligation to redress the wrong it has committed. But in obligation erga omnes, as the Court in the Barcelona Traction Case stated, the international community as a whole has the right to vindicate the right of the injured person because the obligation arising from the right is owed by every State to the international community as a whole or as the Court will later state to all States.

The Court expressly uses the terms "principles" and "rules" in apposition to the "basic rights of the human person" which it recognised to have obligations erga omnes. This means that both "principles" and "rules" concerning the basic rights of the human person are both binding erga omnes.

We now come to the question of whether all States have right to protect the basic human rights in the event of their violations irrespective of the nationality of the victims. The Court said that the obligations erga omnes are "the concern of all States," and "in view of the importance of the rights involved, all States can be held to have a legal interest in their protection.'' The Court later in the text stated: "on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. It is therefore still on the regional level that a solution to this problem has to be sought.''

Castro held that the Court's obiter dictum should not be interpreted as the Court’s acknowledgement of the actio popularis in International Law.

Since all States have legal interest in the protection of human rights which create obligation erga omnes, it follows that in the event of a breach of any of them, for example the right to life of a citizen of State A, any State, irrespective of the fact that the victim does not have its nationality has the right to institute legal proceedings before the ICJ against the offending State.

It should be recalled that according to the jurisprudence of the Court in human rights cases which it has dealt with, it has always maintained that human rights and humanitarian principles are binding even without conventional obligation. This position of the Court is maintained in this Barcelona Traction Case by affirming that the principles concerning the basic rights of the human person are binding erga omnes.

If the principles of the basic rights of human person are binding erga omnes and all the States have interest in their protection, then every State has the right to vindicate any of these rights when breached by any State. But does the Court's reference to a lack of instrument on the universal level that grants right to protection of any of the rights having erga omnes obligation, refer to the necessity of an international instrument for the enforcement of the breach of any of the rights having erga omnes obligations which is different from the binding character of their corresponding rights?

Hence its reference to the European Convention on Human Rights which grants each State the right to take legal action to vindicate any of the basic human rights irrespective of the nationality of the victim. Meron has observed the flaw in this position of the Court which cannot be reconciled with the fact that at the time of the pronouncement of the Court, there existed already the International Covenant on Civil and Political Rights whose article 4l grants each State party the right to lodge a complaint against any State party that breaches any of the rights recognised in the Covenant. However, before a conclusion of this sort can be drawn, it should be recalled that the Covenant in question entered into force on 23 March 1976, even though it was adopted on 16 December 1966.

In any case, the determination of the existence of erga omnes obligation of the principles and rules of human concerning the basic human rights of the person is a progress in international Law since when put into practice by States it will guarantee as a more effective and universal protection of human rights. From this point of view the Court deserves commendations notwithstanding the imperfections in its formulation of the norm of obligation erga omnes of human rights.

We maintain that the logical conclusion of the breach of obligation erga omnes of human rights by any State, group of persons or an individual is that the legal interest of all States and the international community as a whole is injured. Therefore not only all States but also the international community have right to intervene to protect that legal interest through non–violent counter-measures against the perpetrator including taking legal action against the offending State, group of persons or the individual before the international criminal Court.

But when the response to the human rights violations requires physical protection of the victims through military intervention - when there is a threat or actual massive systematic violations of human right to life of civilian population in armed conflict that are tantamount to genocide or mass killings - have all States and the international community as a whole the right to intervene militarily to ensure the physical protection of the civilians when it is foreseen that legal action or other peaceful measures when taken either will be ineffective in protecting the civilians or that they have been tried and found to be abortive? It is obvious that there is a legal right and duty incumbent on all States and the international community as a whole to protect the civilians. But whether this right includes the right to use of force to achieve this objective is a question we shall discuss later.

In the Case concerning military and paramilitary Activities in and against Nicaragua, 1996, (Nicaragua v. United States of America), the Court maintained that the principles of humanitarian Law are binding independently of the conventions that embody them.

The reservation made by the United States of America under article 36 of the Statute of the International Court of Justice, among other things requires that it agrees to the Court’s jurisdiction on every case before the Court of which it is party. The Court stated: "The Court must thus now rule upon the consequences of the United States multilateral treaty reservation for the decision which it has to give. It will be recalled that the United States acceptance of jurisdiction deposited on 26 August 1946 contains a proviso excluding from its application: ‘disputes arising under a multilateral treaty, (1) all parties to the treaty affected by a decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction".

While stating that in its 1984 Judgement included pronouncements on certain aspects of that reservation, it then "took the view that it was neither necessary nor possible, at the jurisdictional stage of the proceedings, for it to take a position on all the problems posed by the reservation." The Court maintained that "it regarded this as not necessary because, in its Application, Nicaragua had not confined its claim to breaches of multilateral treaties but had also invoked a number of principles of ‘general and customary international Law’…." Then the Court argued: "These principles remained binding as such, although they were also enshrined in treaty law provisions." Further the Court stated that "the effect of the reservation in question is confined to barring the applicability of the United Nations Charter and Organisation of American States Charter as multilateral treaty law, and has no further impact on the sources of international law which Article 38 of the Statute requires the Court to apply." Further the Court stated: "The Court has now to turn its attention to the question of the law applicable to the present dispute. In formulating its view on the significance of the United States multilateral treaty reservation, the court has reached the conclusion that it must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claim, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute."

The Court stated that it has the right to apply other sources of international Law in order to judge the case. It then argued: "…in its view the conduct of the United States may be judged according to the fundamental general principles of humanitarian law: in its view, the Geneva Conventions are in some respects a development, and in other respects no more than the expression, of such principles." Continuing, it stated: "It is significant in this respect that, according to the terms of the Conventions, the denunciation of one of them "shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience’ (Convention 1. Art. 63; Convention II, Art. 62: Convention III. Art. 142; Convention IV. Art. 158)."

Also the ICJ affirmed that Article 3 which is common to the four Geneva Conventions protect civilians during armed conflict which is "not of an international character occurring in the territory of one of the High Contracting Parties" are also binding erga omnes. After stating that article 3 which is common to all four Geneva Conventions of 12 August 1949 spells out the rules to be applied in the armed conflicts of non-international character, the Court went on to affirm that certainly these rules also form a minimum yardstick besides the more elaborate rules which apply to international conflicts in the event of international armed conflicts, and that they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22…)" Continuing, the Court stated that the pertinent principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, which expressly applies to conflicts not having an international character. It then went on to affirm the obligation erga omnes of article 3 which is common to all four Geneva Conventions. It stated: "The Court considers that there is an obligation on the United States Government in the terms of Article 1 of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’, since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression " It then concluded that the United States "is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions…."

Article 158 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949, states: "Each of the High Contracting Parties shall be at liberty to denounce the present Convention….The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience." The fact that every States Party to this Convention is still bound by the obligation to protect the Civilians even after it has denounced the Convention, means that the obligation to protect Civilians in armed conflict is binding irrespective of the Geneva Conventions. The source of their obligation as stated in the Convention is the principles of the law of nations.

In this section, we shall discuss the contributions of the doctrine to the norm of obligation erga omnes of principles human rights and humanitarian Law. To this end we shall discuss the following: (1) Resolution of the Institute of International Law; (2) International Law Commission

On l3 September 1989, the Institute of International Law adopted a resolution on "The Protection of human rights and the principle of non-intervention in the international affairs of States.'' This resolution marks the climax of the recognition in International Law of the norm of obligation erga omnes of human rights.

In paragraph 5 of the Preamble, the Institute stated that the reactions of States and international organisations to the frequent gross violations of human rights, international doctrine and jurisprudence, testify that since human rights have been given international protection, they "are no longer matters essentially within the domestic jurisdiction of States."

Article 1 states that human rights express directly the dignity of the human person. The obligation of States to ensure their observance arises from the recognition of this dignity. As stated by the International Court of Justice, this international obligation is erga omnes. It devolves upon every State vis-à-vis the entire international community, and each State has a legal interest in the protection of human rights. The obligation in addition involves a duty of solidarity among all States to ensure that human rights are effectively protected as soon as possible all over the world.

Article 2 stipulates that a State cannot escape from its international responsibility if it breaches its obligations in the field of human rights under the pretext that such matters fall essentially within its domestic jurisdiction.

As legitimate reactions to the breach of human rights, States either individually or collectively, have the right to take diplomatic, economic and other measures against any State that has breached the obligation stated in article 1. However, this is under the condition that such measures are authorised in International Law and also that they do not entail the use of armed force which would be a contravention of the Charter. When such measures are taken, they should not be regarded as an unlawful intervention in the internal affairs of that State.

The justification of whatever measures are taken depends on the gravity of the violations and of all the relevant circumstances. In the event of grave violations of human rights, especially large-scale or systematic violations, including the infringements of non-derogable rights, collective measures undertaken to ensure the protection of human rights are justified.

Article 3 states that in all circumstances, diplomatic representations, mere verbal expressions of concern or disapproval concerning any infringements of human rights are all lawful.

Article 4 stipulates that measures, whether individual or collective, which are taken, shall satisfy the following conditions:

(1) With the exception of extreme urgency, before measures are taken there should be a formal request made to the State infringing the human rights to cease to do so;

(2) There should be proportionality between the measures taken and the gravity of the violation;

(3) Only against the offending State shall measures be taken;

(4) The interests of individuals, of the third States, and the effect of the measures taken on the standard of living of the population involved, shall be put into consideration by States taking such measures.

Article 5 states that humanitarian assistance to the population against whose State counter-measures are taken should not be regarded as unlawful intervention in the internal affairs of that State. Humanitarian assistance should not be arbitrarily rejected by the State.

Article 6 states that the provisions of the resolution shall apply without prejudice to the other procedures that are prescribed on international and regional levels in human rights matters.

The International Law Commission in accordance with the distinction made by the ICJ between obligations erga omnes and those arising from diplomatic protection which is bilateral, established in article 19 of the Draft articles on State Responsibility, as one of the crimes, a serious breach of human rights. It states:" ...on the basis of the rules of International Law in force, an international crime may result, inter alia, from... (c) A serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid."

The commission of a crime by a State has erga omnes consequences because it is a "breach by a State of an international obligation so essential for the protection of fundamental interest of the international community" Thus the International Law Commission states: "In fact, the whole definition of an international crime in article 19, paragraph 2, seems to presuppose the recognition of a collective interest of all (other) States."

Consequently, when a State commits international crime for example by perpetrating genocide, all States are therefore considered as "injured State." This is established in article 5 of the Draft articles proposed by the special Rapporteur in his Fifth Report (1984) where he states: "For the purposes of the present articles, "injured State" means: (a) if the internationally wrongful act constitutes an infringement of a right appertaining to a State by virtue of a customary rule of International Law or of a right arising from a treaty provision for a third State, the State whose right has been infringed...(d) if the internationally wrongful act constitutes a breach of an obligation imposed by a multilateral treaty, a State party to that treaty, if it is established that :

(i) the obligation was stipulated in its favour; or

(ii) the breach of the obligation by one State party necessarily affects the exercise of the rights or the performance of the obligations of all other States parties; or

(iii) the obligation was stipulated for the protection of collective interests of the States parties; or

(iv) the obligation was stipulated for the protection of individual persons, irrespective of their nationality;

(e) if the internationally wrongful act constitutes an international crime, all other States."

Commenting on this article the International Law Commission states: "...some multilateral treaties recognise or create, as between the States parties to them, a collective (in contradistinction to a merely common or parallel) interest of those States, for the protection or promotion of which those States enter into obligations. A breach of such an obligation then injures the collectivity of such States parties rather than one or more individual States parties." The Commission further states: "The other instance of recognition, or creation, of an interest not allocated to a particular State party to the multilateral treaty is the multilateral treaty providing for obligations of States parties to respect fundamental rights as such." It follows then that by virtue of the erga omnes character of any human rights obligation, in the event of its breach, every State party to such multilateral human rights treaty is "injured State."

However, when the breach of human rights constitutes a crime, it is not only all the States Parties that are "injured State" but also all other States of the international community that are not parties to the human rights multilateral treaty. Hence, article 5( e) of the Draft articles proposed by the Special Rapporteur in his Fifth Report (1984) stated: "if the internationally wrongful act constitutes an international crime, all other States."

Paragraph 1 of article 5 of the Rome Statute of the International Criminal Court recognised those crimes, which are of most serious concern to the international community. It stated: "The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression."

Since these crimes are of serious concern to the international community, when they are committed the legal interest of all States and the whole international community is injured and every State has the right to ensure that their perpetrators are prosecuted in order to protect its interest. The logical consequence of this is that the International Criminal Court should have compulsory jurisdiction to try any one accused of crime of genocide, crimes against humanity, war crimes and crime of aggression irrespective of whether the State of the accused has ratified the Rome Statute of the International Criminal Court or not. However, the Statute provides ratification by the State concerned before the Court can have jurisdiction to try its citizen, which we maintain is illogical.

In this section we shall discuss the legal consequences of obligation erga omnes of principles of human rights and humanitarian Law in the contemporary International Law under the following themes: (1) obligation erga omnes of human rights devolves on all States, (2) all States have legal interest in the observance of human rights and right to intervention without force to protect the victims; (3) all human rights have obligation erga omnes, (4) objection to the norm of obligation erga omnes of human rights; (5) genocide and mass killings and right and duty of all States to humanitarian intervention.

One of the logical consequences of obligation erga omnes of any norm having that character in International Law is that its obligation devolves on all States irrespective of their consent. Also every State has the right to protect the corresponding erga omnes rights. Meron explains "obligations erga omnes" as being international obligations which are so basic "that they run equally to all other States, and every State has the right to help protect the corresponding rights.''

In contemporary International Law, the principles concerning the basic rights of the human person are among those norms that create obligations erga omnes. Thus, the ICJ in the Case concerning the Barcelona Traction, Light and Power Company, Limited, 1970, affirmed that "an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection." Those obligations towards the entire international community, the Court maintained, are the "concern of all States,'' and are "obligations erga omnes..'' Those obligations erga omnes in contemporary International Law are derived inter alia from the "principles and rules concerning the basic rights of the human person." Therefore the basic rights of the human person create obligations which are binding on all States irrespective of their will or consent.

Dinstein argued that since human rights are rights, they entail corresponding obligations. These obligations devolve on States within the system of International Law.

The Institute of International Law in article 1 of its resolution adopted on l3 September 1989, as we have seen, maintained that human rights constitute a direct expression of the dignity of the human person. And that the obligation for the States to respect them follows from the recognition of this human dignity. The Institute went on to affirm that "this international obligation, as expressed by the International Court of Justice, is erga omnes; it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights." It further stated that this obligation connotes a duty of solidarity among all States to guarantee the effective protection of human rights in the whole world as soon as possible. The obligation to protect human rights therefore devolves on all States.

Since the obligation erga omnes of human rights devolves on all States, all States have legal interest in their observance of human rights by all other States. There are ipso facto corresponding rights created for all States. Just as every State has an obligation towards every other State, so also every State has a right to the fulfilment by every other State of the obligation flowing from human rights. Thus new States' rights are generated by the fact of existence of obligation erga omnes of human rights which are different from the human rights of the individuals.

Thus, States either individually or collectively have the right to take non-violent counter-measures that is interventions without force, against the offending State to make it desist from further violation of human rights and to comply with its erga omnes obligations.

These non-violent counter-measures are forms of intervention without force. However, in the event of a threat or actual perpetration of mass killings or genocide, the UN Security Council should authorise UN Member States or any group of States to intervene to prevent or stop such violations.

It is discussed among authors whether all the human rights contained in all the major human rights instruments have obligation erga omnes or only some of them.

He maintained that only massive violations of human rights could be regarded as a breach of erga omnes obligation of human rights demanding sanction of the international community. He also argued that in accordance with article 19 of Draft articles on State responsibility, a massive violation of human rights of an individual or of a group of persons also calls for reaction on the part of the international community. Moreover, the International Law Commission in its draft articles on State responsibility only mentioned "a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid."

Meron has interpreted this text to mean that the Court intended to distinguish between basic human rights of the human person which give rise to obligation erga omnes and ordinary human rights that do not do so. Dinstein has criticised this interpretation of Meron. He maintained that if the Court had intended to make such distinction, it would have been without any basis in the theory and practice of human rights since all human rights are described as "fundamental freedoms." He affirmed that "any attempt to rate some of them as more basic than others would be confusing and ill-advised."

Meron is equally opposed to any distinction implied by the use of the phrase "basic human rights" by the ICJ. He argued that the distinction between "basic rights" and "ordinary rights" is not self-evident. Meron maintains that the development of law due to impact of the principle of erga omnes shows that the erga omnes character of human rights has not been restricted to basic rights. Meron concluded that "both international practice and scholarly opinion seem to have moved well beyond the erga omnes dictum of Barcelona Traction. The distinction between basic human rights and human rights tout court, as regards their erga omnes character, can no longer be regarded as settled law." Similarly some members of the Institute of International Law, have criticised such distinction.

The Institute of International Law, unlike the ICJ never uses the term "basic" to qualify human rights in its resolution, rather it simply uses the phrase "human rights." For example, in article 1 of its resolution it stated: "Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity.... This international obligation, as expressed by the International Court of Justice, is erga omnes." Other references to the use of the same phrase are the following: "...every State has a legal interest in the protection of human rights." "The obligation ... implies the duty ... to ensure ... effective protection of human rights...." "Measures designed to ensure the collective protection of human rights...." "Diplomatic representations... regarding any violations of human rights...." etc.

The question is: What does the Institute mean by the phrase "human rights" which have obligation erga omnes? Does it refer to all the human rights contained in all the human rights instruments or only to some of them like the human rights provisions of the charter and the Universal Declaration of human rights of 1948, or does it refer like the ICJ to "basic rights" of the human person which, as we have shown, mean "fundamental rights"?.

Dinstein has affirmed that the resolution of the Institute embraces all human rights recognised in the Universal Declaration of Human Rights of 1984. He maintained that "this formula certainly goes beyond a few so-called basic rights and transcends any reasonable limits of jus cogens. " Although not every human right recognised in the Universal Declaration of Human Rights is jus cogens, the decision of the Institute is that each of those rights creates an obligation erga omnes. Dinstein affirmed that the Institute did not confer erga omnes status to human rights recognised after the adoption of the Universal Declaration of Human Rights of 1948. He concluded that "recent advances in International Law, which have pushed the frontiers of human rights beyond the pale of the Universal Declaration, cannot be regarded as a source of erga omnes obligations."

I do not accept this position because human rights are universal, indivisible and interdependent. Thus, the Vienna Declaration and Programme of Action rightly stated: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis…it is the duty of States …to promote and protect all human rights and fundamental freedoms. Since all human rights are universal indivisible, interdependent and interrelated, it is right to argue that all of them have the character of obligation erga omnes. In my own opinion, the solution to the problem lies in the interpretation of the phrase "basic rights" as used by the ICJ in the Barcelona Traction Case. Its equivalent in the French text of the ICJ Reports, is "les droits fondamentaux.'' "Les droits fondamentaux" would be translated in English as "fundamental rights." If this is correct – and I am of the opinion that "basic rights" and "fundamental rights" mean the same thing – then the question is: what does "fundamental rights" in law mean? There is a general agreement that "fundamental rights are those human rights that are guaranteed by the constitution. This fact can be substantiated from the practice of States in the legal protection of human rights. It was these fundamental rights that later became recognised as human rights in International Law. Moreover, many constitutions, have a section which is entitled "Fundamental Rights and Freedoms.'' The PCIJ in the Danzig Legislative Decrees Case, affirmed that "fundamental rights" are those rights that are protected by the constitution. I therefore maintain that "human rights" are the same as "fundamental rights."

Although all human rights have obligation erga omnes and all States are legal interest in their protection, and consequently the right to intervention without force to protect them in the event of their violation, however, I maintain that it is only when genocide and mass killings occur that humanitarian intervention to prevent or stop genocide and mass killings when all interventions without force have proved abortive is a logical consequence of obligation erga omnes of human rights. Other conditions that should be fulfilled before such humanitarian intervention should be legitimate are as follows: (1) it must have the authorisation of the Security Council; (2) it must respect the humanitarian law and the principle of proportionality; (3) Moreover, recourse to it must be had only after all peaceful means to resolve the issue have failed; (5) it must aim only at preventing or stopping the State from carrying out further massive violations of right to life of the civilian population and therefore as soon as this objective is achieved, the humanitarian intervention must cease.

One characteristic of the obligation erga omnes of human rights is that it is binding on all States, including those that do not consent to it. No State is free from the obligation even if it objects to it. Also, it does not require the consent of States before they observe human rights. What, then, is the basis of this kind of obligation? We shall argue in this section that it is not the consent of States but the principle of human dignity. To this end, we shall examine two main theories on the basis of obligation in International Law of Human Rights. The following theories shall therefore be discussed: (1) consensualism, (2) the Principle of Human Dignity.

Consensualism or voluntarism, is a positivist theory which maintains that the basis of obligation in International Law is the consent or will of the States. Since the theory of consensualism varies with its proponents we shall examine the various versions of the theory as held by its proponents vis-à-vis the doctrine of obligation erga omnes of human rights. The classical formulation of this theory is found in the judgement of the Permanent Court of International Justice in The case of the S.S. "Lotus," 1927. In this case the Court stated: "International Law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed."

The Court, in other words, affirms that the obligations arising for States in International Law are derived from their free will as expressed in conventions and customary laws. The free will of States is therefore the basis of obligation in International Law, hence only the consensual sources of International Law - conventions and customary law - are binding on States. This position of the Court, moreover, has been criticised by Judge Loder in his dissenting opinion. In his very words: "...under International Law, every door is open unless it is closed by treaty or by established custom. The Court in its judgement holds that this view is correct, well founded, and in accordance with actual facts.... It seems to me that the contention is at variance with the spirit of International Law." The logical conclusion is that the general principles of law recognised by civilised nations do not constitute an independent source of obligation for States.

Obviously this version of consensualism advanced by the Court cannot be the basis of the obligation erga omnes of human rights since this obligation binds all States, irrespective of human rights obligations arising either from human rights treaties or customary international law, which are binding on States because they have consented to such obligations. Moreover, consensualism negates the obligation erga omnes by demanding that each State has to consent before it is subject to such obligation.

Some authors also have held the consensual basis of obligation in International Law. Triepel, for example, affirmed that just as the will of the State is the source of law in internal law, so also in the International Law, the source of law is the will of States. This will of states, he maintained, cannot be individual will of each state but the common will of States. This will that creates International Law cannot be the individual will of a State but the common will which is the union of particular wills of the States. The means by which this common will is constituted he called "Vereinbarung". Because the will of States is the basis of international obligation, Triepel then concluded that no State can be bound neither by any international rule nor by a treaty in whose formation it has not participated nor can it later subject itself to it. The consensual theory of Triepel obviously cannot be the basis of the obligation erga omnes of human rights since this kind of obligation binds even States that have not consented to the principles of human rights.

The inadequacy of the theory of Triepel as the true basis of obligation erga omnes of human rights can be seen from its logical consequence on the obligation erga omnes of human rights. Since consent can be withdrawn, if, at any time in the future all the States withdraw their consent to the obligation erga omnes of human rights, it means that human rights will automatically cease to be binding on all States; this is untenable.

In contemporary International Law, there are also a number of proponents of the consensual theory as the basis for International Law. They include the American Law Institute, which in its publication, Restatement of the Law, stated that modern International Law is based on the acceptance of the States. The problem with this theory is that, since acceptance is consensual, if States in the future refuse to accept that human rights create obligation erga omnes, does that mean that human rights will cease to be binding on all of them?

The obligations erga omnes arising from human rights are binding on all States irrespective of their acceptance. Acceptance as the basis of the doctrine of obligation erga omnes of human rights is therefore untenable.

Other modern proponents of consensual theory as the basis of obligation in International Law are Weil and Oppenheim's International Law. Weil maintained that States are creators of norms of International Law. The logical consequence of his voluntarism is his rejection of the existence of doctrine of obligation erga omnes in contemporary International Law.

Oppenheim's International Law affirms that "common consent" could be said to be the basis of international legal system." It further explained that "common consent" does not mean that every time all the States must expressly consent to each part of all the rules of International Law, because such common consent can never be established in practice. What it meant by common consent is not consent to singular rules, but rather express or tacit consent of States to the corpus of the rules that, at a given time, constitute the International Law.

The "common consent" advocated by Oppenheim's International Law, as the basis of the obligation in International Law is like the "common will" of Triepel. The problem with this kind of theory, as we have seen in the case of the "common will" of Triepel, is that since States' will, which is the source of the "common consent" is subject to change, also the common consent can be withdrawn or altered at any moment. When this obtains, the obvious effect is that it will undermine the obligation erga omnes of human rights. In fact Oppenheim's International Law referred to this possibility when it stated, "The body of the rules of this law (i.e. International Law) can be altered by the generally agreed procedures only, not by a unilateral declaration on the part of one State." Since the body of the rules of International Law can be altered because they are based on the "common consent" of States, it follows that the human rights rules which create obligation erga omnes and which form part of this body of rules, can also be altered. This will be detrimental to the protection of human rights.

In short, the consensual theory as the basis of obligation in International Law is incompatible with the norm of obligation erga omnes of human rights. Therefore it cannot constitute the basis of obligation erga omnes of human rights. We shall therefore turn to the theory of "human dignity," which offers an adequate foundation for the obligation erga omnes of human rights.

Most international instruments on human rights affirm that human rights are derived from "human dignity." Thus paragraph 2 of the preamble to the International Covenant on Economic, Social and Cultural Rights states, "Recognising that these rights derive from the inherent dignity of the human person." Also paragraph 2 of the preamble to International Covenant on Civil and Political Rights states "Recognising that these rights derive from the inherent dignity of the human person." The Final Act of the Helsinki Conference, 1975 in principle VII, states that the participating States "will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development."

The obvious conclusion to be drawn from the above is that the basis of human rights is neither the "common consent" of States, nor the consent of any individual State but the dignity of the human person.

Human rights are the expression of the human dignity. In order to respect the dignity of every human person, it is imperative to respect his human rights everywhere and always irrespective of his nationality.

The obligations erga omnes of human rights are therefore based on the principle that human dignity should be respected always and everywhere. Common consent of States is only the secondary basis of obligation erga omnes, while the primary basis is the principle of human dignity.

One of the legal consequences of any norm giving obligation erga omnes is that this norm per se e de jure limits the sovereignty of States. This follows from the fact that the obligation in question does not arise from the will of States but from human dignity. States as we have said are bound by this obligation even against the will.

A norm that limits the sovereignty of States against their will must be considered to be superior to the will of States and consequently their sovereignty. Consequently the duty to observe this norm must take precedence over the duty to respect the sovereignty of States. Such norm can logically be regarded as a norm of jus cogens. Consequently, the right and duty arising from the norm of obligation erga omnes of the principles of human rights and humanitarian Law to protect human rights overrides the duty to respect the sovereignty of States.

Another logical consequence of the obligation erga omnes of principles of human rights and humanitarian Law is that ratification of the instruments embodying human rights and humanitarian norms is no longer a conditio sine qua non for the obligation to observe these norms. All States are obliged to observe human rights and humanitarian norms irrespective of whether they have ratified the Conventions that embody these norms or not. The principles of theses norms are binding per se and erga omnes. They are binding independently of the treaties that codify them. Consequently all States have the obligation to observe them always even if they have not ratified Conventions of human rights and humanitarian law or have withdrawn from them after having ratified them.

Also the fact that every State has legal interest in the observance of human rights and humanitarian Law, in the event of their breach by any State or individual, every State is "injured" State since its legal interest has been injured. Consequently, every State has the right to prosecute the accused in its domestic Court or in the international criminal Court when the human rights violations are massive as to constitute international crimes whether or not the State or the State of the accused has ratified the statute of the international criminal Court. This means that the international Criminal Court should have universal compulsory jurisdiction.

This follows from the fact that the erga omnes character of the human rights violation arising from the erga omnes obligation of principles of human rights and humanitarian Law makes every State a defendant because its legal interest has been injured by the offending State. Consequently every State has the right to protect its legal interest that has been harmed by prosecuting the offending State or the individual.

The final legal consequence of the norm of obligation erga omnes of principles of human rights and humanitarian Law is that the issue of human rights and humanitarian Law is no longer a matter essentially and exclusively within the domestic jurisdiction of States. In international Law, it is a generally accepted rule that once a State assumes an international obligation on a particular matter, that matter automatically ceases to be within the domestic jurisdiction of that State. Thus in the Advisory Opinion on Nationality Decrees in Tunis and Morocco, 1923, the P.I.C.J. stated:" From one point of view, it might well be said that the jurisdiction of a State is exclusive within the limits fixed by international law.... The words "solely within the domestic jurisdiction" seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State are not, in principle, regulated by international Law. As regards such matters, each State is sole judge." The Court continued: "The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain." However, once such a matter like nationality which in principle is within domestic jurisdiction is regulated by international Law, "the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States."

Therefore "in such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law. Article 15, paragraph 8, then ceases to apply as regards those States which are entitled to invoke such rules, and the dispute as to the question whether a State has or has not the right to take certain measures becomes in these circumstances a dispute of an international character and falls outside the scope of the exception contained in this paragraph."

Thus, when a norm creates an obligation for a State under international Law, the object of that norm ceases to be a matter essentially and exclusively with the domestic jurisdiction of that State. Since the norm of obligation erga omnes of principles of human rights and humanitarian Law creates obligation erga omnes vis-à-vis all States and all other States and the international community as a whole have legal interest and right in their observance, it logically follows that they have ceased to be a matter essentially and exclusively within the domestic jurisdiction of States. Although issues of human rights and humanitarian Law are shared by both national and international jurisdiction however, they are essentially within international jurisdiction.

Some authors like P. Weil have attacked this new development in the contemporary International Law concerning the existence of the legal interest of all States in the observance of obligations erga omnes of human rights. He maintained that it is not any State that may be considered to have a "legal interest" that has a right to the observance of any international obligation by other State or States on which such obligation devolves. Weil affirmed that "there is no legal obligation whose fulfilment can be demanded by all States without distinction, as possessors of a corresponding right." He therefore concluded that "no international obligations erga omnes traditionally exist: it is up to each State to protect its own rights; it is up to none to champion the rights of others."

Replying to this position of Weil, Dinstein affirmed that the concept of obligations erga omnes "can probably be regarded as settled law today." The practice of States in protesting against violations of human rights irrespective of the nationality of the victims, is an evidence of the acceptance of the doctrine of obligations erga omnes of human rights. Moreover the doctrine of obligations erga omnes of human rights will ensure more effective implementation of International Law through collective enforcement. It shows the need of the principle of solidarity in International Law. This will ensure more effective protection of fundamental rights of the human person as opposed to bilateralism that has up till now characterised International Law in the field of international responsibility.

As we have seen above, one of the legal consequences of obligation erga omnes of principles of human rights and humanitarian Law is that all States have the right to intervene without force to protect the victims of human rights violations irrespective of their nationality. The norm of obligation erga omnes of human rights and humanitarian Law in the contemporary international Law, grants every State this right to protect human rights whenever and wherever they are breached. Thus if any State fails to respect and observe human rights and fundamental freedoms such conduct constitutes a breach of legal interest of the all States and the international community as a whole. Consequently all other States are injured States since their legal interest is adversely affected by the misconduct of the offending State even though they are not directly and materially affected by the misconduct of the offending State. Thus, they have right to intervene without force to protect their legal interest that has been injured. States therefore have right to resort to all forms of interventions without force in order to protect human rights.

But, the question arises: when there is a threat or actual commission of genocide or mass killings by a State or group of persons or an individual, have States the right to intervene militarily to protect the civilian population? After having exhausted all non-violent measures to ensure the protection of the civilian population and such measures have proved abortive to achieve this purpose, we maintain that there is a right and duty following from obligation erga omnes of human rights and humanitarian Law, to intervene even militarily to protect the victims provided the conditions we have already stated are fulfilled. Thus, the Pope in his Message for the Celebration of the World Day of Peace of 1 January 2000 stated: "Clearly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor."

But under the contemporary international Law, such humanitarian intervention to protect the civilian population will constitute a breach of international Law in force for the following reasons:

First, a right to collective armed intervention cannot be legitimate because in this case, there is no question of armed attack against a Member State of UN. Thus, the ICJ in the Nicaragua Case, stated:"…the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. In the view of the Court, under international Law in force today -whether customary international Law or that of the United Nations system -States do not have a right of ‘collective’ armed response to acts which do not constitute an ‘armed attack’." Thus, self-defence cannot justify any humanitarian intervention undertaken to protect the civilian population against mass killings or genocide. However, the fact remains that there is an armed attack here although not against the State qua tale but against the its civilian population. The Charter does not authorise States to intervene collectively to defend the civilian population against armed attack. Consequently, States cannot intervene under article 51 of the Charter in this situation.

Collective armed intervention to protect the civilian population cannot also be justified under the current international Law by invoking the doctrine of humanitarian intervention for the following reasons: (1) The collective humanitarian intervention will constitute a breach of the principle of non-use of force in international relations. (2) When such humanitarian intervention is undertaken by a regional force in order to restore international peace and security, it will constitute a breach of article 53 if there is no prior authorisation of the UN Security Council. Assuming that the UN Security Council authorises such regional humanitarian intervention, it will do so not primarily to protect the civilian population against genocide or mass murder but because it has determined that the situation constitutes a threat to international or regional peace and security. Which means that if this link between restoring international peace and security and perpetration of mass murder or genocide is not made, the UN Security Council may not authorise the regional forces to intervene militarily to protect the civilians.

Consequently, we are faced with a situation in which there are three options: (1) Either, the Civilian population is left to die because the UN Charter does not authorise humanitarian intervention to protect civilians against genocide or mass killings when they are attacked since the collective intervention is legitimate only when there is external armed attack against a sovereign State but not armed attack against a civilian population within a State by either the State itself or by a group of warring party or the UN Security Council after having determined that the situation constitutes a threat to international or regional peace and security authorises the multinational force established by the Member States of the UN or a regional forces to intervene to restore peace and security. But even in this latter situation, since the Charter does not provide for intervention to protect the civilians against genocide or mass killings, authorisation from the UN Security Council may not be forthcoming unless the it is clear that the mass killings or genocide constitutes a threat to international or regional peace and security.

The obvious conclusion to be drawn from the foregoing is that there is a conflict of norms. There is therefore need to modify the UN Charter to conform to the new developments in international Law.

Since there is right and obligation on the part of all States and the international community as a whole to intervene to protect the human rights of the civilian population in accordance with the norm of obligation erga omnes of human rights, the UN Charter should be modified to allow humanitarian intervention to protect the civilians against genocide or mass murder as another exception to the principles of non-use of force and non-intervention, besides the right to intervention for collective self-defence and UN right to intervention for the restoration of international peace and security under Chapter VII of the Charter, under the following conditions: (1) humanitarian intervention must have the authorisation of the Security Council and it must respect the humanitarian law and the principle of proportionality; (2) recourse to it must be had only after all peaceful means to prevent or stop the genocide or mass killings have failed; (3) it must aim only at preventing an imminent danger of genocide or mass killings or stopping the State from committing further such crimes; (4) as soon as this objective is achieved, the humanitarian intervention must cease.

The legal bases for this humanitarian intervention are as follows:

First, in the contemporary international Law, matters of human rights are no longer issues that are essentially and exclusively within the domestic jurisdiction of States .The fact that articles 55 and 56 of the Charter imposes on the UN and its Member States the obligation to promote universal respect for, and observance of human rights and fundamental freedoms, automatically makes the issue of human rights a matter of international concern. That is, it has ceased to be a matter exclusively within the domestic jurisdiction of individual Member States of the Charter. Cassese stated: "Let me first of all consider what may be regarded as the basic premise or root of the NATO intervention in the present international community. First, it is a truism that today, human rights are no longer of exclusive concern to the particular State where they may be infringed. Human rights are increasingly becoming the main concern of the world community as a whole. There is a widespread sense that they cannot and should not be trampled upon with impunity in any part of the world." Therefore, States have right to intervene when there is massive violation of human right to life of civilians as genocide or mass killings.

Consequently, States have the right to intervene without force to protect human rights whenever and wherever they are violated. However, when there is massive violation of right to life amounting to mass killings or genocide, States the right to intervene militarily to stop the mass killings or genocide provided the conditions we have stated above are fulfilled among which is that there must be prior authorisation from UN Security Council.

Secondly, the legal ground for humanitarian intervention in contemporary international Law is the norm of obligation erga omnes of human rights which requires all States to intervene without force -and we add with armed force when necessary to protect victims of mass killings and genocide - when any State violates human rights. In accordance with this doctrine, all States have legal interest in the respect and observance of human rights and fundamental freedoms all those within the jurisdiction of every State. Consequently, when a State breaches the right to life on a massive scale, all other States are injured States. Accordingly, they have a right to intervene to protect the victims irrespective of the sovereignty of the offending State. Thus, Cassese stated that the basic premise or root of the NATO’s intervention in the present international community is that "the concept is now commonly accepted that obligations to respect human rights are erga omnes and, correlatively, any State, individually or collectively, has the right to take steps (admittedly, short of force) to attain such respect." Although, when the intervention involves the use of force and is undertaken by a regional force, it is necessary to obtain the authorisation of the UN Security Council in accordance with article 53 paragraph 1 of the UN Charter.

Thirdly, the traditional doctrine of humanitarian intervention requires that when there is massive violation of right to life, for example when a State engages in mass killings or genocide, other States have the right and duty to intervene with force to protect the victims irrespective of their duty to respect the sovereignty of State. However, for such humanitarian intervention to be legal, the intervening State or States should fulfil certain conditions. These conditions are as follows: First, the intervention must be authorised by the UN Security Council. Secondly, it must respect the principles of proportionality. Thirdly, it can only be resorted to when all non-forcible interventions to get the defaulting State comply with its human rights obligation have failed.

Finally it follows from the above considerations that whenever there is conflict between intervention to protect human rights and fundamental freedoms and the duty to respect the principle of sovereignty of states, the protection of human rights and fundamental freedoms takes precedence. Thus, the UN Secretary-General rightly stated: State sovereignty, in its most basic sense, is being redefined-not least by forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty-by which I mean the fundamental freedom of each individual enshrined in the charter of the UN and subsequent international treaties-has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them."

However, this intervention should be without force. The only exception to this rule is when mass killings or genocide occurs. In this case, it is legitimate to intervene with force in accordance with the doctrine of humanitarian intervention provided the intervening State or States has/have obtained prior authorisation of the UN Security Council and humanitarian law and the principle of proportionality are respected.

In conclusion, we completely agree with the UN Secretary-General when he stated: "This developing norm in favour of intervention to protect civilians from wholesale slaughter will no doubt continue to pose challenges to the international community. In some quarters it will arouse distrust, scepticism, even hostility. But I believe on balance we should welcome it. Why? Because, despite all the difficulties of putting it into practice, it does show that humankind today is less willing than in the past to tolerate suffering in its midst, and more willing to do something about it."

Our recommendations are based on the foregoing discussion on the norm of the obligation erga omnes of principles of human rights and humanitarian Law, on our study on the conflicts in Bosnia and Herzegovina, Rwanda, Kosovo and in East Timor.

These recommendations are divided into three sections: Section 1 deals with necessary remote preventive measures to avoid mass killings and genocide. These preventive measures are remote measures that should be taken both normal circumstances when there is no conflict and when there is no violation of human right to life of civilian population in armed conflict. Emphasis should be placed on prevention than on intervention. These preventive measures should also be taken when there are sporadic violations of human right to life of civilians in armed conflict. They also deal with measures to be taken to prevent sporadic killings from erupting into mass killings or genocide. and to prevent mass killings from escalating into genocide. These preventive measures are categorised into three sections or groups. The first group deals with remote preventive measures. The second section deals with interventions without force while the third deals with preventive armed intervention. Section 2 deals with measures for undertaking humanitarian intervention in order to prevent mass killings from escalating into genocide. Section 3 deals with measures to stop mass killings and genocide when any of these crimes has started occurring. Section 4 deals with the prosecution of those accused of genocide or mass killings which is primarily is meant to serve as a deterrent against those who may contemplate committing such crimes in future. To this end we shall discuss the following: (1) Remote preventive measures, (2) interventions without force, (3) humanitarian intervention, (4) and prosecution of suspects.

One of the most effective ways of ensuring the respect of the provisions of international humanitarian and human rights law is acceptance by the international community that these norms have obligation erga omnes . The acceptance of the obligation erga omnes of the norms of human rights and humanitarian norms will have the following consequences:

All States, groups, warring parties including non-State actors and belligerents, every State official and every soldier and every civilian all have obligation to respect these norms. Ratification of these instruments of human rights and humanitarian Law or any agreement reached by warring parties to observe these norms is no longer a sine qua non for their observance since their obligation does not depend on the consent of States expressed through ratification of these instruments or through any agreement reached by the warring parties. This is because obligation arising from erga omnes norms does not derive from the consent of States, groups or individuals but from the principle that human dignity. Consequently, there would be no need for ratification of the human rights and humanitarian instruments before they are binding on States non-State actors and individuals.

The safety of civilian population in any armed conflict should take precedence over peace – keeping by UN peacekeepers. This protection may entail intervention by the UN peacekeepers or any other UN forces or regional or national force authorised by the UN Security Council. Thus, when in armed conflicts, the safety of the civilian population in safe areas is at risk and enforcement action is required to protect them, the UN Security Council should authorise it irrespective of whatever effects it might have on the overall search for political solution to the conflict. Human right to life of the civilian population should not be sacrificed in order to achieve a peaceful political solution to any conflict rather their protection should be take the priority over any "peaceful" political solution If the warring parties fail to observe the Geneva conventions, the UN Security Council should be ready to authorise enforcement action to protect the lives of the civilian population irrespective of whatever effects such intervention might have on the search for political agreement that would lead to the end of the conflict.

We therefore recommend that protection of civilian humanitarian intervention to protect the civilian population in armed conflicts should be accepted by the international community as a norm of jus cogens having obligation erga omnes whose violation through genocide or mass killings will trigger automatic military intervention by the UN or by any regional or national force authorised by the UN Security Council

We recommend that all governments and the UN should ensure the protection of rights of minorities. This will entail the drafting and ratification of a convention on the rights of the minorities which should come into effect as soon as possible.

There should be a systematic training programme organised for the training national armed forces and the police in every country in the international human rights and humanitarian law.

UN and States and Deans of Law schools should undertake global promotion of study of international law especially human rights and humanitarian law in institutions at all levels

We recommend that UN all states and deans of law schools should undertake global promotion of study of international law especially human rights and humanitarian law in institutions at all levels.

There should be a systematic campaign for the promotion of human rights and fundamental freedoms both by the UN and the all States.

It is a view held by many authors that democracy is a political system that guarantees peace. We therefore recommend that the UN and all States should undertake a promotion of universal recognition of right to democracy.

The UN Charter should have a new principle that humanitarian intervention to prevent or stop genocide or mass killings has primacy over principles of non-use of force, non-intervention and the duty to respect the sovereignty of States.

As a corollary to the foregoing it is therefore necessary that besides the right to individual and collective self-defence recognised in article 51 of the UN Charter and the UN enforcement measures for the maintenance or restoration of international peace and security stated in chapter VII of the Charter which is an exception to the prohibition of intervention in matters that are essentially within the domestic jurisdiction of States imposed on the UN by article 2 paragraph 7 of the Charter, mean mass killing and genocide should also be made another exception to prohibitions of intervention and the use of force in international Law. Thus, when there is genocide or mass killings of civilian population, the UN Security Council has the right and duty to authorise the Members of the UN TO intervene to stop further violations of this right or it can authorise a regional arrangement to intervene on behalf of the UN.

We recommend that the UN should recognise the right to individual self-defence as a human right and a collective right of every ethnic, racial, national and religious minority. When this right is violated on a massive scale through genocide or mass killing it would justify collective armed intervention to protect the victims.

Humanitarian intervention to protect the civilian population against genocide and mass killing should be made another exception to the principles of non-use of force in international relations and non-intervention and respect for national sovereignty under the following conditions: (1) humanitarian intervention must have the authorisation of the Security Council and it must respect the humanitarian law and the principle of proportionality; (2) recourse to it must be had only after all peaceful means to prevent or stop the genocide or mass killings have failed; (3) it must aim only at preventing an imminent danger of genocide or mass killings or stopping the State from committing further such crimes; (4) as soon as this objective is achieved, the humanitarian intervention must cease.

The UN should draw up rules or a legal regime for the legitimacy of humanitarian intervention

Article 45 of the UN Charter states: "In order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action…." Experience has shown that this provision of the Charter has not been easy to implement. Not only are some Member States reluctant to supply the forces needed but also those who are willing to supply the forces have made them available promptly. Consequently, this has led to loss of lives of civilians in some conflict situations before the UN peacekeeping forces could be deployed.

We therefore recommend that the Charter provides for the establishment of a permanent UN humanitarian intervention force whose objective will be to intervene rapidly to prevent or stop genocide or mass killings.

There is no doubt that to ensure that the UN Security Council needs the assistance of a military Staff Committee which is envisaged by article 47 of the UN Charter in order to ensure that the recommendations we have made here for the protection of civilians in armed conflict are effectively implemented. Paragraph 1 of article 47 stated: "There shall be established a Military Staff Committee to advise and assist the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament."

We therefore recommend that a military Staff Committee should be established to advise and assist the Security Council.

The UN Secretary-General should be authorised to identify earlier enough any situation that is likely to lead to genocide or mass killings and should be able to motivate the UN Security Council to act by authorising Member States of the UN to intervene promptly. He should also be empowered to take initiatives when the urgency of the situation requires it and act independently when the UN Security Council cannot meet urgently to take a decision in order to respond to the emergency situation. This may include authorising a regional force or some Member States of the UN or a member State of the UN to intervene to protect the civilian population. Later, he should report to the UN Security Council of the measures he has taken.

Since principles of human rights and humanitarian Law create obligation erga omnes, it follows that every State has a legal right to demand their respect and observance by every other State. Therefore, if any of these norms is breached by any State, all other States are injured States and therefore entitled to intervene both unilaterally and collectively without force. In this section, we shall discuss the various forms of lawful intervention without force that are available to States under contemporary international Law.

Collective non-violent intervention through collective condemnation of the crime of the offending State by the international community will be very effective in getting the offending State from desisting from further human rights violations.

The first diplomatic measure, which every State should take, is to make diplomatic representations to the offending State requesting it to desist from further breaches of human rights.

Among the lawful remedies under International Law for the breach of obligation erga omnes of human rights and humanitarian Law are the peaceful means for settlement of disputes. These should be resorted to, provided that recourse to them will not lead to worsening the human rights and humanitarian Law violations on the ground. In which case, humanitarian intervention under the conditions we have proposed above would be the most appropriate response in such circumstances.

Some Human Rights instruments have provisions for inter-State complaint for the State Parties. This is also a remedy for breaches of obligation erga omnes of human rights and humanitarian Law.

The UN Security Council and state parties to the genocide convention should identify signs of imminent danger of genocide and mass killings and take the necessary action to prevent or stop genocide or mass killings.

Both the UN Security Council and States Parties to the Convention on the Prevention and Punishment of the Crime of genocide should be able to identify early enough the existence of imminent crime of genocide and genocide itself when it is being committed and take action to prevent it or to stop it. There are two essential elements for the identification of the crime of genocide: the psychological element the intention to destroy a national ethnic racial or religious group and the actual destruction of that group. Thus article 11 of the Convention on the Prevention and Punishment of the Crime of Genocide defining "genocide" stated: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(g) killing members of the group;

(h) Causing serious bodily or mental harm to members of the group;

(i) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(j) Imposing measures intended to prevent births within the group;

(k) Forcibly transferring children of the group to another group."

It follows then that it is only when the two elements, the psychological and material conditions are verified that genocide can be said to exist. One has to find out the purpose of those who are committing the material element in order to verify the existence of the psychological element. Also one has to verify the existence of material element in order to identify the psychological element and the existence of both are necessary to conclude the existence of an imminent danger of genocide or genocide.

The purpose of genocide is always to wipe out the group in question. The International Panel of Eminent Personalities which was established by the OAU to investigate genocide in Rwanda stated: "Those who commit genocide have deliberately set out not just to murder others. They are not ‘merely’ guilty of crimes against humanity – forms of criminality and inhumane acts beyond simple murder. Genocide goes further, to ultimate depths of human perversity. Its aim is to exterminate a part or an entire category of human beings guilty only of being themselves. Genocide is explicitly intended as a ‘final solution’ – an attempt to rid the world of a group that can no longer be tolerated. In a genocide, attacks on women and children are not unfortunate by-products of conflict, or ‘collateral damage,’ in the bloodless jargon of military bureaucracies. On the contrary, women and children are direct targets, since they ensure the future of the group that can no longer be allowed to survive."

Article 111 states "The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide:

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide."

Prevention of the crime of genocide is one of the objectives of the Contracting Parties. It follows then that the State Parties should be able to identify signs of imminent genocide in order to prevent it. This can be deduced from the contents of articles two and three above. For example mass killings of members of national ethnic racial or religious group should constitute a sufficient evidence of an imminent danger of genocide just as conspiracy to commit genocide and direct public incitement to commit genocide.

When such signs of genocide are verified, any contracting Party in accordance with article VII has the right to call upon the competent organs of the united nations to take such action under the charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide.

We are advocating for military intervention only when there is a killing members of a national, ethic, racial and religious group as stated in article 2 a of the Genocide Convention. Although other forms of genocide defined in article 2 are serious crimes, which the State Parties to the Geneva Convention should take action to prevent or stop, however, they do not constitute a serious violation of human rights as killing members of the national ethnic racial or religious group. Other forms of genocide.

When there is a danger of violence against civilians even when there is no internal conflict for example during referendum or elections or when a conflict has actually broken out in any country, in deciding the type of intervention which the UN Security Council should authorise, it is necessary that the UN Security Council always takes into account the history of the conflict in the country vis-à-vis the respect of the rights of minorities by the Government. Especially, the UN Security Council should be in possession of all necessary information about whether there have been in the past cases of mass killings of an ethnic group or genocide. Knowledge of these facts will enable the UN Security Council to monitor very well the developments in the conflict and to authorise as early as possible even at the initial stages of the conflict a UN preventive humanitarian intervention.

The presence of such UN forces will help to avert perpetration by any of the disputing or warring parties, mass killing of ethnic, racial or national minorities or genocide.

I therefore recommend that the UN Security Council should have a profile of every country containing past records of ethnic violence, mass killings or genocide in order to take prevention measures which may include authorising preventive UN humanitarian intervention.

Planning for peacekeeping operations should always include the prevention of mass killings and genocide.

The UN Security Council should always ensure that the mandates it gives to peacekeepers in its resolutions are clear so as to avoid any ambiguity as to which rules of engagement apply during any intervention. The Panel on United Nations Peace Operations rightly stated: "Security Council mandates … should reflect the clarity that peacekeeping operations require for unity of effort when they deploy into potentially dangerous situations." This would enable the UN forces to know what their mission is and what the warring parties and the international community expect from them. There should never be any uncertainty as to which rules of engagement apply during the execution of a peacekeeping mission.

We therefore recommend that UN Security Council should ensure that mandates it gives to the UN forces are clear.

Article 41 chapter VII of the UN Charter authorises the UN Security Council among other things to impose economic sanctions against States in order to maintain or restore international peace and security. In place of such comprehensive economic sanctions, which very often have negative effects against the innocent civilian population, we recommend that the UN Security Council adopts targeted sanctions against State officials who violate the obligation erga omnes of human rights and humanitarian law. The UN Secretary-General rightly stated: "The concept of targeted sanctions, including financial sanctions, such as freezing of overseas assets, trade embargoes on arms and luxury goods and travel bans constitutes a potentially valuable means for pressuring targeted elites, while minimising the negative humanitarian impact on vulnerable civilian populations that has been a characteristic of comprehensive economic sanctions." The UN Security Council should therefore make greater use of "targeted sanctions to deter and contain those who commit egregious violations of international humanitarian and human rights law, as well as those parties to conflicts which continually defy the resolutions of the Security Council, thereby flouting its authority."

UN Security Council should send fact-finding missions when there are signs that genocide or mass killings may occur in future.

Based on the recommendations of the fact-finding mission, the UN Security Council may consider it necessary to authorise UN preventive intervention forces whose duty is to prevent the escalation of the human rights and humanitarian law violations into mass killings or genocide.

When there are clear signs of imminent danger of genocide or mass killings it is necessary that the UN Security authorises preventive humanitarian intervention to prevent them. These signs include sporadic killings or violence directed against a particular national, ethnic racial or religious group or the killing of an eminent political leader belonging to an ethnic group.

The Security Council should not wait until it is clear to every one that the killings of members of ethnic or racial group that are taking place are tantamount to genocide before it authorises humanitarian intervention. This is because it is sometimes difficult under such circumstances to distinguish mass killings from genocide. Also sporadic killings of members of ethic or racial group can be a prelude to genocide and failure to stop such sporadic killings may eventually lead to outright genocide.

It follows then that it is not only when genocide actually begins that the UN Security Council should authorise humanitarian intervention but also when there genuine reports of sporadic killings of members of ethnic group otherwise the UN intervention will be late in protecting the civilian population since some lives shall have been lost. There is therefore need for the UN Security Council sometimes to authorise the UN Member States to intervene to prevent gross violations of human right to life from escalating into mass killings and genocide.

Moreover, the presence of well equipped large number of UN forces in such a situation will obviously act as a deterrent to any government or warring party contemplating genocide.

This preventive intervention does not exclude adopting other preventive measures like negotiations, education of the public on the need to respect human rights of the minority etc.

We therefore recommend that the UN Security Council should authorise preventive humanitarian intervention when there is imminent danger of genocide or mass killings.

When humanitarian intervention is necessary, it should be undertaken promptly without any delay. A well-planned genocide does not need a long time before it is completed. Consequently, the price of any delay in intervention will be a heavy loss of lives.

We therefore recommend that the UN should intervene promptly to protect the civilians from being massacred. This also implies prompt authorisation of humanitarian intervention from the UN Security Council.

In a conflict where the civilians are killed sporadically and it is foreseen that if the situation is not arrested, it will very likely culminate in mass killings or genocide, one of the preventive measures which the UN Security Council can take is to impose an arms embargo on the warring parties.

Besides the imposition of an arms embargo on the warring parties as a preventive measure, we recommend that whenever the warring parties have agreed to a cease-fire by signing a peace accord and have accepted the deployment of the UN peacekeeping forces, one of the top priorities of the UN peacekeepers should be disarming the combatants.

We therefore recommend that disarmament of the ex-combatants should be an integral part of every UN peacekeeping mandate and operation.

When conflicts have broken out, the UN Security Council should urge the warring parties to establish safety zones for the protection of the civilian population. But where the warring parties fail to do so, the UN Security Council should authorise the UN peacekeepers or UN humanitarian intervention force present in the field, to establish such zones. Whether or not the consent of the parties is obtained, such zones must always be established. They should be well delineated and heavily protected against any attack from the warring parties.

I therefore recommend that the UN to make it a policy that in every conflict, the warring parties must establish safety zones for the protection of civilian population. But where they fail to do so, the UN Security Council should establish them by force and ensure that that they are well protected against attack by any of the warring parties.

We recommend that the mandate from the UN Security Council on the safe areas must be clear.

We recommend that UN Security Council must always authorise sufficient troops to deter attacks on safe areas.

We therefore recommend that the UN Security Council must always authorise humanitarian intervention to protect the safe –areas whenever they are attacked

We recommend that either the UN Security Council authorises Member States to intervene to protect the civilians who are under attack and maintains the arms embargo imposed on their government or it should lift the arms embargo so that their government protects its citizens

Protection of civilians in armed conflict should be made an integral part of the mandate of every peacekeeping operation. This would require the UN Security Council to state clearly in the mandate that when the civilian population is at risk of mass murder or genocide, the UN peacekeeping forces have right to intervene militarily to protect them. The Independent Inquiry rightly stated: "Planning for peacekeeping operations should when ever relevant include the prevention of genocide as a specific component. In situations where a peacekeeping operation might be confronted with the risk of massive killings or genocide, it must be made clear in the mandate and Rules of Engagement of that operation that traditional neutrality cannot be applied in such situations, and the necessary resources be put at the disposal of the mission from the start."

We recommend that UN Security Council should never deploy peacekeeping forces when the situation requires deployment of peace-enforcement forces or UN humanitarian intervention force.

The United Nations Member States and the United Nations Security Council should avoid adopting double standards in carrying out its duty to protect the civilian population against genocide or mass killings. Whenever and wherever there is a danger of mass killings or genocide, the UN Security Council should authorise the Member States to intervene to prevent such crimes from occurring. Where they have already started to occur, the UN Security Council should authorise the Member States to intervene to stop them.

Member States on their part should be ready and willing in accordance with their duty arising from the norm of obligation erga omnes of human rights and humanitarian Law to carry out the decision of the UN Security Council. There should not be any double standard by adopting a discriminatory attitude in the protection of the right to life of the civilian population. Humanitarian intervention to prevent or stop, crimes of genocide or mass killings is a duty, which falls on all States and the international community because of the erga omnes character of the crimes involved. The Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda rightly stated: "The United Nations and in particular the Security Council and troop contributing countries must be prepared to act to prevent acts of genocide or gross violations of human rights wherever they may take place. The political will to act should not be subject to different standards."

We recommend that the United Nations should avoid double standards and should always intervene to prevent wherever and whenever there is a danger of their occurring and should intervene to stop them when they have already started to take place.

In order to contain such a situation, the Security Council must be able to ensure that the UN forces, which are initially to be deployed as peacekeeping forces, have also the mandate to undertake humanitarian intervention to protect the civilian population. They should also be well – equipped and ready to undertake such intervention when the protection of the civilian population requires it. This means that the mandate should always make provision for contingencies which may require the possibility of military intervention.

This may require making the mandates flexible so that the Force Commanders can always adjust the initial mandate in order to be able to respond effectively to the new challenges in the field.

We recommend that the UN Security Council should be able to change a peacekeeping operation into a peace-enforcement operation if there is need for enforcement action to protect the civilian population.

Regional or national forces may sometimes be more suitable in preventing or halting genocide than a multinational UN force. The reasons for this are that they can intervene more rapidly than UN Multinational forces, which require time, before they are constituted.

Consequently, we recommend that the UN Security Council should when faced with imminent danger of genocide which demands prompt intervention give preference to authorising a State or regional arrangements to intervene on behalf of the UN to protect the civilian population.

We recommend that the mandate, which the UN Security Council gives to UN peacekeeping forces, must be both peacekeeping and peace-enforcement in order to ensure that the civilian population is always protected.

The UN Security Council should not authorise the deployment of peacekeeping forces with peacekeeping mandate when the situation on the ground requires humanitarian intervention to protect the civilians. There must be correspondence between the actual situation on the ground, the type of UN Force that is deployed and the mandate that it is given to that force. I agree with the panel of Inquiry when it stated: "The overriding concern in formulating mandates must be what presence is needed on the ground, not short-term financial constraints. The Security Council should be presented with proposals reflecting the real needs of a mission, not ones tailored to a previously perceived consensus."

We recommend that UN Security Council should not authorise the deployment of peacekeeping forces with a peacekeeping mandate when the situation on the ground requires enforcement action or humanitarian intervention to protect the civilians.

Another proposal for ensuring the protection of civilian population in armed conflict when there is a risk of mass murder or genocide is to undertake the evacuation of the civilian population into foreign countries. Experience shows that this has proved effective in ensuring the protection of civilian population in armed conflict.

This may be an alternative to establishment of safe areas or demilitarised zones. There should not be double standards in the evacuation of the civilian population. In any situation where the life of the civilian population is at risk, efforts should be made by the UN and international community to save the life of every civilian irrespective of his nationality. We maintain that efforts should be made to evacuate all persons within the country whose lives are at risk when there is an imminent danger of mass killings or genocide.

We recommend that evacuation of all civilian population should be done without any discrimination in any armed conflict when there is a risk of mass murder or genocide.

Therefore the protection of civilians in armed conflict should be made the primary duty of any UN peacekeeping operation. This duty should be clearly stated in the mandate of every peacekeeping operation as we have already stated and both the peacekeepers and the warring parties should be made aware of this new mission of the UN peacekeepers. This will also act as a deterrent to any warring party contemplating launching attack against civilians.

This would require a review of the whole modus operandi of UN peacekeeping operation and a reordering of its objectives.

We recommend that making the protection of civilian population in every armed conflict should be the primary objective of every UN peacekeeping operation.

The UN Security Council should authorise UN Member States to intervene to prevent gross violations of human right to life of civilians from escalating into genocide.

The warring parties have the duty in accordance with the norm of obligation erga omnes of principles of human rights and humanitarian Law to respect the provisions of the human rights and humanitarian Law in every armed conflict. The UN Secretary-General rightly stated: "The protection of civilians in armed conflict would be largely assured if combatants respected the provisions of international humanitarian and human rights law."

Warring parties must always respect the legal regime of the safe area even they are established by the UN Security Council.

In any peace agreement, the UN should ensure that the parties in conflict specify in their cease-fire agreement that they undertake to ensure respect for human rights and humanitarian law.

We recommend that demilitarisation agreements should be implemented by the warring parties.

Member States of the United Nations must be prepared to provide the necessary troops at short notice

Troop contributors should refrain from withdrawing their troops from peacekeeping operation when that withdrawal will jeopardise the peacekeeping operation and consequently expose the civilian population to danger of attack by any of the warring parties.

We recommend that UN Member States must be always be willing to supply the number of troops authorised by the UN Security Council

The UN and all its Member States have the right and duty to intervene to stop mass killings and genocide

We recommend that the UN should intervene to deter attacks against civilians in the safe areas when they are attacked by any of the warring parties.

Although there should be a distinction between peace-keeping and peace-enforcement or intervention however, when UN peace-keeping forces are faced with a situation of imminent threat of genocide or mass killings or when such crimes have started unfolding they have a duty to protect the lives of the civilians irrespective of the fact that they are peace-keepers or that they have only peace-keeping mandate. This requires the UN Security Council to grant the peace-keeping forces the authority to meet the challenges of unforeseen circumstances

Article 1 of the Convention states: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." Further article VIII stated: "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III."

We recommend that States Parties to the Convention on the Prevention and Punishment of the Crime of Genocide should act in accordance with the duty under Genocide convention to prevent or stop genocide

Since every State has legal interest in the observance of these norms of obligation erga omnes of human rights and humanitarian Law, they have right to prosecute any State, belligerent groups, state officials, military officials and civilians and other non-State actors accused of breaching the obligation erga omnes of human rights and humanitarian norms in the international Criminal Court irrespective of whether the State has ratified the Rome Statute of the International Criminal Court or not.

States should therefore ensure that persons accused of genocide war crimes and crimes against humanity are brought to trial in domestic Courts. This would not only ensure adequate remedies for the breaches the rights of the victims but also this will serve as a deterrent against such crimes. It is the responsibility of States to end impunity and to prosecute those responsible for genocide, crimes against humanity and serious violations of international humanitarian law.

Paragraph 2 of article 125 of the Rome Statute of the International Criminal Court states: "This Statute is subject to ratification, acceptance or approval by signatory States." If human rights and humanitarian law have obligation erga omnes as we have established, it follows that breaches of these norms has also erga omnes character. In fact, genocide, war crimes and crimes against humanity are international crimes, which have erga omnes consequences. Therefore, when theses crimes are committed, the legal interest of all States and the international community is injured. This means that every State has right to prosecute the offender in its national court or in the International Criminal Court in order to protect its legal interest that has been injured irrespective of whether the State of the accused has ratified the Rome Statute of the International Criminal Court. or not. In other words it is logical that the International Criminal Court should have universal jurisdiction to try those accused of violations of norms of obligation erga omnes of human rights which amount to international crimes. This would mean that the Statute of the Court should be amended so as to grant every State the right to prosecute or try any one guilty of mass killing or genocide whether or not the State whose nationality the accused possesses has ratified the Rome State of the International Criminal Court and the International Criminal Court should have automatic universal jurisdiction to try those suspects.

States should also incorporate the humanitarian and human rights instruments into their national law so that they may be effective at a domestic level. This would help to ensure that those accused of violations of humanitarian and human rights Law are brought to justice in domestic courts.

This proposition is a corollary to the prohibition of use of force in international relations as required by article 2 paragraph 4 of the Charter and a logical consequence to article 2 paragraph 3 which requires Member States to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Without the States accepting the compulsory jurisdiction of the International Court of Justice, these articles will not be seriously observed by the States and the main purpose of the United Nations Organisation, which is the maintenance of international peace, and security would not be realised.

The end of the last millennium has been characterised by the massive violations of human rights and humanitarian law in conflicts. As we begin a new millennium, we feel duty bound to undertake this research in order to ensure that the UN, the Security Council and all States play a more effective role in the protection of human right to life of civilian populations anywhere during armed conflicts in the new millennium.

In the face of mass killings or genocide in any conflict, the UN Forces should intervene militarily, effectively and rapidly to protect the civilian populations by compelling the warring parties or party to respect the rights guaranteed to civilians by human rights and humanitarian instruments. Protection of civilians in armed conflict should be the primary mandate of the Organisation while maintenance of international peace and security should be a means for the realisation of this objective and not vice versa. In the very words of the UN Secretary-General: "The plight of civilians is no longer something which can be neglected, or made secondary because it complicates political negotiations or interests. It is fundamental to the central mandate of the Organisation. The responsibility for the protection of civilians cannot be transferred to others. The United Nations is the only international organisation with the reach and authority to end these practices. I urge the Security Council to commit itself to this task."

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