U.S.contempt for the framework of world order is
so extreme there is little left to discuss
It should be unnecessary to emphasize that there is a far more extensive record that would be prominently reviewed right now if facts were considered relevant to determining the "custom and practice" that is called upon to confer upon the most enlightened state the right "to do what it thinks right" by force.
It could be argued, rather plausibly, that further demolition of the rules of world order is by now of no significance, as in the late 1930s. The contempt of the world’s leading power for the framework of world order has become so extreme that there is little left to discuss. A review of the internal documentary record demonstrates that the stance traces back to the earliest days, even to the first memorandum of the newly formed National Security Council in 1947. During the Kennedy years, the stance began to gain overt expression, as, for example, when the eminent statesman and Kennedy adviser Dean Acheson justified the blockade of Cuba in 1962 by informing the American Society of International Law that the "propriety" of a U.S. response to a "challenge...[to the]...power, position, and prestige of the United States...is not a legal issue." "The real purpose of talking about international law was, for Acheson, simply ‘to gild our positions with an ethos derived from very general moral principles which have affected legal doctrines’"—when convenient.
The main innovation of the Reagan-Clinton years is that defiance of international law and solemn obligations has become entirely open, even widely lauded in the West as "the new internationalism" that heralds a wonderful new age, unique in human history. Unsurprisingly, the developments are perceived rather differently in the traditional domains of the enlightened states; and, for different reasons, are of concern even to some hawkish policy analysts.
The end of the Cold War made it possible to transcend even Achesonian cynicism. Bows to world order are unnecessary, even to be despised, as the enlightened states do as they please without concern for deterrence or world opinion. Doctrinal management suffices "to gild our positions with an ethos derived from very general moral principles," as recent developments show with much clarity. "Innovative but justifiable extension of international law" (Mark Weller) can be devised at will by the powerful, to serve their special interests: "humanitarian intervention" by bombs in Kosovo, but no withdrawal of a huge flow of lethal arms for worthy ethnic cleansing and state terror within NATO, to cite only the most dramatic illustration. With "unpopular ideas silenced and inconvenient facts kept dark" in the style described by Orwell in his (silenced) observations on the free societies, all should proceed smoothly. Whatever happens is "a landmark in international relations" as the "enlightened states," led by an "idealistic New World bent on ending inhumanity," proceed to use military force where they "believe it to be just"—or as others see it, to devise "rules of the game" that accord them "the right to intervene with force to compel what seems to them to be justified," always "cloaked in moralistic righteousness," "as in the colonial era."
From the perspective of the enlightened, the difference of interpretation reflects the sharp divide that separates their "normal world" from that of the backward peoples who lack "Western concepts of toleration" and have not yet overcome "the human capacity for evil," to the astonishment and dismay of the civilized world.
In this context, it is hardly surprising that "international law is today probably less highly regarded in our country than at any time" since the founding of the American Society of International Law in 1908. Or that the editor of the leading professional journal of international law should warn of the "alarming exacerbation" of Washington’s dismissal of treaty obligations.
The prevailing attitude towards institutions of world order was illustrated in a different way when Yugoslavia brought charges against NATO countries to the World Court, appealing to the Genocide Convention. The Court determined that it had no jurisdiction, while holding that "All parties must act in conformity with their obligations under the United Nations Charter," which clearly bars the bombing—"veiled language to say that the bombing was breaking international law," the New York Times reported. Of particular interest was the submission of the U.S. government, which presented an airtight legal argument, accepted by the Court, that its actions did not fall under Court jurisdiction. The U.S. had indeed ratified the Genocide Convention, after a very long delay, but with a reservation that "the specific consent of the United States is required" if charges are brought against it; and the United States refuses to give the "specific consent" that the reservation stipulates. Court rules require that both parties agree to its jurisdiction, Counsel John Crook reminded the Court, and U.S. ratification of the Convention was conditioned on its inapplicability to the United States.
It may be added that the reservation is more general. The U.S. ratifies few enabling conventions concerning human rights and related matters, and these few are conditioned by reservations that render them (effectively) inapplicable to the United States.
The explanations offered for rejection of international obligations are interesting, and would be on the front pages, and prominent in the school and university curriculum, if honesty and human consequences were considered significant values.
The highest authorities have made it clear that international law and agencies had become irrelevant because they no longer follow Washington’s orders, as they did in the early postwar years, when U.S. power was overwhelming. When the World Court was considering what it later condemned as Washington’s "unlawful use of force" against Nicaragua, Secretary of State George Shultz—honored as the Mr. Clean of the Reagan administration—derided those who advocate "utopian, legalistic means like outside mediation, the United Nations, and the World Court, while ignoring the power element of the equation." Clear and forthright, and by no means original. State Department Legal Adviser Abraham Sofaer explained that members of the UN can no longer "be counted on to share our view," and the "majority often opposes the United States on important international questions," so we must "reserve to ourselves the power to determine" how we will act and which matters fall "essentially within the domestic jurisdiction of the United States, as determined by the United States"—in this case, Washington’s "unlawful use of force" against Nicaragua.
It is all very well to speak abstractly of the "innovative but justifiable extension of international law" that creates a right of "humanitarian intervention," or to accord to the enlightened states the right to use military force where they "believe it to be just." But it should also be recognized that, hardly by accident, the states that are self-qualified as enlightened turn out to be those that can act as they please. And that in the real world, there are two options: (1) Some kind of framework of world order, perhaps the UN Charter, the International Court of Justice, and other existing institutions, or perhaps something better if it can be devised and broadly accepted; (2) The powerful do as they wish, expecting to receive the accolades that are the prerogative of power.
Abstract discussion may choose to consider other possible worlds, perhaps a fit topic for graduate seminars in philosophy. But for the present, at least, it is options (1) and (2) that identify the real world in which decisions that affect human affairs have to be made.
The fact that the operative choices reduce to (1) and (2) was recognized 50 years ago by the World Court: "The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the defects in international organization, find a place in international law...; from the nature of things, [Intervention] would be reserved for the most powerful states, and might easily lead to perverting the administration of justice itself."
One can adopt the stance of "intentional ignorance" and ignore "custom and practice," or dismiss them on some absurd grounds ("change of course," "Cold War," and other familiar pretexts). Or we can take custom, practice, and explicit doctrine seriously, along with the actual history of "humanitarian intervention," departing from respectable norms but at least opening the possibility of gaining some understanding of what is happening in the world.
Where does that leave the specific question of what should have been done in Kosovo? It leaves it unanswered. The answer cannot be simply deduced from abstract principle, still less from pious hopes, but requires careful attention to the circumstances of the real world.
A reasonable judgment, I think, is that the U.S. chose a course of action that—as anticipated—would escalate atrocities and violence; that strikes yet another blow against the regime of international order, which offers the weak at least some limited protection from predatory states; that undermines democratic developments within Yugoslavia, possibly Macedonia as well; and that sets back the prospects for disarmament and for some control of nuclear weapons and other weapons of mass destruction, indeed may leave others with "no choice" but to "obtain weapons of mass destruction" in self-defense. Of the three logically possible options, it chose (I) "act to escalate the catastrophe," rejecting the alternatives: (II) "do nothing," (III) "try to mitigate the catastrophe." Was option (III) realistic? One cannot know, but there are indications that it might have been.
For Kosovo, one plausible observation from the outset was that "every bomb that falls on Serbia and every ethnic killing in Kosovo suggests that it will scarcely be possible for Serbs and Albanians to live beside each other in some sort of peace" (Financial Times, March 27) Other possible long-term outcomes are not pleasant to contemplate. At best, NATO’s immediate institution of its version of the official settlement leaves "staggering problems" to be addressed, most urgently those that are "the effect" of the bombing, as acknowledged.
A standard argument is that we had to do something: we could not simply stand by as atrocities continued. There was no alternative to the resort to force, Tony Blair declared, with many heads nodding in sober agreement: "to do nothing would have been to acquiesce in Milosevic’s brutality." If option (III) ("mitigate the catastrophe") is excluded, as tacitly assumed, and we are left only with (I) ("escalate the catastrophe") or (II) ("do nothing"), then we must choose (I). That the argument can even be voiced is a tribute to the desperation of supporters of the bombing. Suppose you see a crime in the streets, and feel that you can’t just stand by silently, so you pick up an assault rifle and kill everyone involved: criminal, victim, bystanders. Are we to understand that to be the rational and moral response, in accord with Blair’s principle?
One choice, always available, is to follow the Hippocratic principle: "First, do no harm." If you can think of no way to adhere to that elementary principle, then do nothing; at least that is preferable to causing harm—the consequence recognized in advance to be "predictable" in the case of Kosovo, a prediction amply fulfilled. It may sometimes be true that the search for peaceful means is at an end, and that there is "no alternative" to doing nothing or causing vast harm. If so, anyone with even a minimal claim to being a moral agent will abide by the Hippocratic principle. That nothing constructive can be done must, however, be demonstrated. In the case of Kosovo, diplomatic options appeared to be open, and might have been productive and as is coming to be acknowledged, far too late.
The right of "humanitarian intervention" is likely to be more frequently invoked in coming years—maybe with justification, maybe not—now that the system of deterrence has collapsed (allowing more freedom of action) and Cold War pretexts have lost their efficacy (requiring new ones). In such an era, it may be worthwhile to pay attention to the views of highly respected commentators—not forgetting the World Court, which ruled on the matter of intervention and "humanitarian aid" in a decision rejected by the United States, its essentials not even reported.
In the scholarly disciplines of international affairs and international law it would be hard to find more respected voices than Hedley Bull or Louis Henkin. Bull warned 15 years ago that "Particular states or groups of states that set themselves up as the authoritative judges of the world common good, in disregard of the views of others, are in fact a menace to international order, and thus to effective action in this field." Henkin, in a standard work on world order, writes that the "pressures eroding the prohibition on the use of force are deplorable, and the arguments to legitimize the use of force in those circumstances are unpersuasive and dangerous... Even ‘humanitarian intervention’ can too readily be used as the occasion or pretext for aggression. Violations of human rights are indeed all too common, and if it were permissible to remedy them by external use of force, there would be no law to forbid the use of force by almost any state against almost any other. Human rights, I believe, will have to be vindicated, and other injustices remedied, by other, peaceful means, not by opening the door to aggression and destroying the principal advance in international law, the outlawing of war and the prohibition of force."
These are reflections that should not be lightly disregarded. Recognized principles of international law and world order, treaty obligations, decisions by the World Court, considered pronouncements by respected commentators—these do not automatically yield general principles or solutions to particular problems. Each has to be considered on its merits. For those who do not adopt the standards of Saddam Hussein, there is a heavy burden of proof to meet in undertaking the threat or use of force.
Perhaps the burden can be met, but that has to be shown, not merely proclaimed. The consequences have to be assessed carefully—in particular, what we take to be "predictable." The reasons for the actions also have to be assessed—on rational grounds, with attention to historical fact and the documentary record, not simply by adulation of our leaders and the "principles and values" attributed to them by admirers.
Íà ãëàâíóþ ñòðàíèöó