There is, of course, more to say. Thus there is at least a tension,
if not an outright contradiction, between the rules of world order laid down in the UN
Charter and the rights articulated in the Universal Declaration of Human Rights (UD), a
second pillar of the world order established under US initiative after World War II. The
Charter bans force violating state sovereignty; the UD guarantees the rights of
individuals against oppressive states. The issue of "humanitarian intervention"
arises from this tension. It is the right of "humanitarian intervention" that is
claimed by the US/NATO in Kosovo, and that is generally supported by editorial opinion and
news reports (in the latter case, reflexively, even by the very choice of terminology).
The question is addressed in a news report in the NY Times
(March 27), headlined "Legal Scholars Support Case for Using Force" in Kosovo
(March 27). One example is offered: Allen Gerson, former counsel to the US mission to the
UN. Two other legal scholars are cited. One, Ted Galen Carpenter, "scoffed at the
Administration argument" and dismissed the alleged right of intervention. The third
is Jack Goldsmith, a specialist on international law at Chicago Law school. He says that
critics of the NATO bombing "have a pretty good legal argument," but "many
people think [an exception for humanitarian intervention] does exist as a matter of custom
and practice." That summarizes the evidence offered to justify the favored conclusion
stated in the headline.
Goldsmith's observation is reasonable, at least if we agree that
facts are relevant to the determination of "custom and practice." We may also
bear in mind a truism: the right of humanitarian intervention, if it exists, is premised
on the "good faith" of those intervening, and that assumption is based not on
their rhetoric but on their record, in particular their record of adherence to the
principles of international law, World Court decisions, and so on. That is indeed a
truism, at least with regard to others. Consider, for example, Iranian offers to intervene
in Bosnia to prevent massacres at a time when the West would not do so. These were
dismissed with ridicule (in fact, ignored); if there was a reason beyond subordination to
power, it was because Iranian "good faith" could not be assumed. A rational
person then asks obvious questions: is the Iranian record of intervention and terror worse
than that of the US? And other questions, for example: How should we assess the "good
faith" of the only country to have vetoed a Security Council resolution calling on
all states to obey international law? What about its historical record? Unless such
questions are prominent on the agenda of discourse, an honest person will dismiss it as
mere allegiance to doctrine. A useful exercise is to determine how much of the literature
-- media or other -- survives such elementary conditions as these.
(2) How do these or other considerations apply in the
case of Kosovo?
There has been a humanitarian catastrophe in Kosovo in the past
year, overwhelmingly attributable to Yugoslav military forces. The main victims have been
ethnic Albanian Kosovars, some 90% of the population of this Yugoslav territory. The
standard estimate is 2000 deaths and hundreds of thousands of refugees.
In such cases, outsiders have three choices:
(I) try to escalate the catastrophe
(II) do nothing
(III) try to mitigate the catastrophe
The choices are illustrated by other contemporary cases. Let's keep
to a few of approximately the same scale, and ask where Kosovo fits into the pattern.
(A) Colombia. In Colombia, according to State Department estimates,
the annual level of political killing by the government and its paramilitary associates is
about at the level of Kosovo, and refugee flight primarily from their atrocities is well
over a million. Colombia has been the leading Western hemisphere recipient of US arms and
training as violence increased through the '90s, and that assistance is now increasing,
under a "drug war" pretext dismissed by almost all serious observers. The
Clinton administration was particularly enthusiastic in its praise for President Gaviria,
whose tenure in office was responsible for "appalling levels of violence,"
according to human rights organizations, even surpassing his predecessors. Details are
In this case, the US reaction is (I): escalate the atrocities.
(B) Turkey. By very conservative estimate, Turkish repression of
Kurds in the '90s falls in the category of Kosovo. It peaked in the early '90s; one index
is the flight of over a million Kurds from the countryside to the unofficial Kurdish
capital Diyarbakir from 1990 to 1994, as the Turkish army was devastating the countryside.
1994 marked two records: it was "the year of the worst repression in the Kurdish
provinces" of Turkey, Jonathan Randal reported from the scene, and the year when
Turkey became "the biggest single importer of American military hardware and thus the
world's largest arms purchaser." When human rights groups exposed Turkey's use of US
jets to bomb villages, the Clinton Administration found ways to evade laws requiring
suspension of arms deliveries, much as it was doing in Indonesia and elsewhere.
Colombia and Turkey explain their (US-supported) atrocities on
grounds that they are defending their countries from the threat of terrorist guerrillas.
As does the government of Yugoslavia.
Again, the example illustrates (I): try to escalate the atrocities.
(C) Laos. Every year thousands of people, mostly children and poor
farmers, are killed in the Plain of Jars in Northern Laos, the scene of the heaviest
bombing of civilian targets in history it appears, and arguably the most cruel:
Washington's furious assault on a poor peasant society had little to do with its wars in
the region. The worst period was from 1968, when Washington was compelled to undertake
negotiations (under popular and business pressure), ending the regular bombardment of
North Vietnam. Kissinger-Nixon then decided to shift the planes to bombardment of Laos and
The deaths are from "bombies," tiny anti-personnel
weapons, far worse than land-mines: they are designed specifically to kill and maim, and
have no effect on trucks, buildings, etc. The Plain was saturated with hundreds of
millions of these criminal devices, which have a failure-to-explode rate of 20%-30%
according to the manufacturer, Honeywell. The numbers suggest either remarkably poor
quality control or a rational policy of murdering civilians by delayed action. These were
only a fraction of the technology deployed, including advanced missiles to penetrate caves
where families sought shelter. Current annual casualties from "bombies" are
estimated from hundreds a year to "an annual nationwide casualty rate of
20,000," more than half of them deaths, according to the veteran Asia reporter Barry
Wain of the Wall Street Journal -- in its Asia edition. A conservative estimate, then, is
that the crisis this year is approximately comparable to Kosovo, though deaths are far
more highly concentrated among children -- over half, according to analyses reported by
the Mennonite Central Committee, which has been working there since 1977 to alleviate the
There have been efforts to publicize and deal with the humanitarian
catastrophe. A British-based Mine Advisory Group (MAG) is trying to remove the lethal
objects, but the US is "conspicuously missing from the handful of Western
organisations that have followed MAG," the British press reports, though it has
finally agreed to train some Laotian civilians. The British press also reports, with some
anger, the allegation of MAG specialists that the US refuses to provide them with
"render harmless procedures" that would make their work "a lot quicker and
a lot safer." These remain a state secret, as does the whole affair in the United
States. The Bangkok press reports a very similar situation in Cambodia, particularly the
Eastern region where US bombardment from early 1969 was most intense.
In this case, the US reaction is (II): do nothing. And the reaction
of the media and commentators is to keep silent, following the norms under which the war
against Laos was designated a "secret war" -- meaning well-known, but
suppressed, as also in the case of Cambodia from March 1969. The level of self-censorship
was extraordinary then, as is the current phase. The relevance of this shocking example
should be obvious without further comment.
I will skip other examples of (I) and (II), which abound, and also
much more serious contemporary atrocities, such as the huge slaughter of Iraqi civilians
by means of a particularly vicious form of biological warfare -- "a very hard
choice," Madeleine Albright commented on national TV in 1996 when asked for her
reaction to the killing of half a million Iraqi children in 5 years, but "we think
the price is worth it." Current estimates remain about 5000 children killed a month,
and the price is still "worth it." These and other examples might also be kept
in mind when we read awed rhetoric about how the "moral compass" of the Clinton
Administration is at last functioning properly, as the Kosovo example illustrates.
Just what does the example illustrate? The threat of NATO bombing,
predictably, led to a sharp escalation of atrocities by the Serbian Army and
paramilitaries, and to the departure of international observers, which of course had the
same effect. Commanding General Wesley Clark declared that it was "entirely
predictable" that Serbian terror and violence would intensify after the NATO bombing,
exactly as happened. The terror for the first time reached the capital city of Pristina,
and there are credible reports of large-scale destruction of villages, assassinations,
generation of an enormous refugee flow, perhaps an effort to expel a good part of the
Albanian population -- all an "entirely predictable" consequence of the threat
and then the use of force, as General Clark rightly observes.
Kosovo is therefore another illustration of (I): try to escalate the
violence, with exactly that expectation.
To find examples illustrating (III) is all too easy, at least if we
keep to official rhetoric. The major recent academic study of "humanitarian
intervention," by Sean Murphy, reviews the record after the Kellogg-Briand pact of
1928 which outlawed war, and then since the UN Charter, which strengthened and articulated
these provisions. In the first phase, he writes, the most prominent examples of
"humanitarian intervention" were Japan's attack on Manchuria, Mussolini's
invasion of Ethiopia, and Hitler's occupation of parts of Czechoslovakia. All were
accompanied by highly uplifting humanitarian rhetoric, and factual justifications as well.
Japan was going to establish an "earthly paradise" as it defended Manchurians
from "Chinese bandits," with the support of a leading Chinese nationalist, a far
more credible figure than anyone the US was able to conjure up during its attack on South
Vietnam. Mussolini was liberating thousands of slaves as he carried forth the Western
"civilizing mission." Hitler announced Germany's intention to end ethnic
tensions and violence, and "safeguard the national individuality of the German and
Czech peoples," in an operation "filled with earnest desire to serve the true
interests of the peoples dwelling in the area," in accordance with their will; the
Slovakian President asked Hitler to declare Slovakia a protectorate.
Another useful intellectual exercise is to compare those obscene
justifications with those offered for interventions, including "humanitarian
interventions," in the post-UN Charter period.
In that period, perhaps the most compelling example of (III) is the
Vietnamese invasion of Cambodia in December 1978, terminating Pol Pot's atrocities, which
were then peaking. Vietnam pleaded the right of self-defense against armed attack, one of
the few post-Charter examples when the plea is plausible: the Khmer Rouge regime
(Democratic Kampuchea, DK) was carrying out murderous attacks against Vietnam in border
areas. The US reaction is instructive. The press condemned the "Prussians" of
Asia for their outrageous violation of international law. They were harshly punished for
the crime of having terminated Pol Pot's slaughters, first by a (US-backed) Chinese
invasion, then by US imposition of extremely harsh sanctions. The US recognized the
expelled DK as the official government of Cambodia, because of its "continuity"
with the Pol Pot regime, the State Department explained. Not too subtly, the US supported
the Khmer Rouge in its continuing attacks in Cambodia.
The example tells us more about the "custom and practice"
that underlies "the emerging legal norms of humanitarian intervention."
Despite the desperate efforts of ideologues to prove that circles
are square, there is no serious doubt that the NATO bombings further undermine what
remains of the fragile structure of international law. The US made that entirely clear in
the discussions leading to the NATO decision. Apart from the UK (by now, about as much of
an independent actor as the Ukraine was in the pre-Gorbachev years), NATO countries were
skeptical of US policy, and were particularly annoyed by Secretary of State Albright's
"saber-rattling" (Kevin Cullen, Boston Globe, Feb. 22). Today, the more
closely one approaches the conflicted region, the greater the opposition to Washington's
insistence on force, even within NATO (Greece and Italy). France had called for a UN
Security Council resolution to authorize deployment of NATO peacekeepers. The US flatly
refused, insisting on "its stand that NATO should be able to act independently of the
United Nations," State Department officials explained. The US refused to permit the
"neuralgic word `authorize'" to appear in the final NATO statement, unwilling to
concede any authority to the UN Charter and international law; only the word
"endorse" was permitted (Jane Perlez, NYT, Feb. 11). Similarly the bombing of
Iraq was a brazen expression of contempt for the UN, even the specific timing, and was so
understood. And of course the same is true of the destruction of half the pharmaceutical
production of a small African country a few months earlier, an event that also does not
indicate that the "moral compass" is straying from righteousness -- not to speak
of a record that would be prominently reviewed right now if facts were considered relevant
to determining "custom and practice."
It could be argued, rather plausibly, that further demolition of the
rules of world order is irrelevant, just as it had lost its meaning by the late 1930s. The
contempt of the world's leading power for the framework of world order has become so
extreme that there is nothing 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. The main innovation of the
Reagan-Clinton years is that defiance of international law and the Charter has become
entirely open. It has also been backed with interesting explanations, which would be on
the front pages, and prominent in the school and university curriculum, if truth and
honesty were considered significant values. The highest authorities explained with brutal
clarity that the World Court, the UN, and other agencies had become irrelevant because
they no longer follow US orders, as they did in the early postwar years.
One might then adopt the official position. That would be an honest
stand, at least if it were accompanied by refusal to play the cynical game of
self-righteous posturing and wielding of the despised principles of international law as a
highly selective weapon against shifting enemies.
While the Reaganites broke new ground, under Clinton the defiance of
world order has become so extreme as to be of concern even to hawkish policy analysts. In
the current issue of the leading establishment journal, Foreign Affairs, Samuel Huntington
warns that Washington is treading a dangerous course. In the eyes of much of the world --
probably most of the world, he suggests -- the US is "becoming the rogue
superpower," considered "the single greatest external threat to their
societies." Realist "international relations theory," he argues, predicts
that coalitions may arise to counterbalance the rogue superpower. On pragmatic grounds,
then, the stance should be reconsidered. Americans who prefer a different image of their
society might call for a reconsideration on other than pragmatic grounds.
Where does that leave the question of what to do in Kosovo? It
leaves it unanswered. The US has chosen a course of action which, as it explicitly
recognizes, escalates atrocities and violence -- "predictably"; a course of
action that also strikes yet another blow against the regime of international order, which
does offer the weak at least some limited protection from predatory states. As for the
longer term, consequences are unpredictable. One plausible observation is 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). Some of the longer-term possible
outcomes are extremely ugly, as has not gone without notice.
A standard argument is that we had to do something: we could not
simply stand by as atrocities continue. That is never true. One choice, always, 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. There are always ways that
can be considered. Diplomacy and negotiations are never at an end.
The right of "humanitarian intervention" is likely to be
more frequently invoked in coming years -- maybe with justification, maybe not -- now that
Cold War pretexts have lost their efficacy. In such an era, it may be worthwhile to pay
attention to the views of highly respected commentators -- not to speak of the World
Court, which explicitly ruled on this matter 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... 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 principle advance in international law,
the outlawing of war and the prohibition of force."
Recognized principles of international law and world order, solemn
treaty obligations, decisions by the World Court, considered pronouncements by the most
respected commentators -- these do not automatically solve particular problems. Each issue
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 in violation of the principles of international order. Perhaps the burden can be
met, but that has to be shown, not merely proclaimed with passionate rhetoric. The
consequences of such violations have to be assessed carefully -- in particular, what we
understand to be "predictable." And for those who are minimally serious, the
reasons for the actions also have to be assessed -- again, not simply by adulation of our
leaders and their "moral compass." _