Has US power destroyed the UN?
Simon Chesterman and Michael Byers
Nato’s unilateral intervention in the Balkans has frightened Russia, isolated China, and done little to help the million or so Kosovars in whose name Serbia is being bombed. Its principal achievements may be to ensure the death of the ‘new world order’ famously heralded by George Bush after the liberation of Kuwait in 1991, and to destroy an institution that has helped to prevent international wars for over half a century.
In 1945, the United States and fifty other countries created an international organisation to ensure ‘that armed force shall not be used, save in the common interest’. Constructed in the aftermath of the Second World War, the United Nations was designed to outlaw the unilateral use of force and provide an institutional framework for the collective maintenance of peace and security. Most important, it provided a veto to five countries – the US, the UK, France, China and the USSR – which enabled them to render any armed intervention illegal under international law, no matter what the motives, by withholding UN Security Council authorisation.
Buffeted by the Cold War, this fragile normative edifice stood the test of time, helping – through the modest constraint of international law – to prevent major wars while providing peacekeeping forces for a multitude of smaller conflicts. Its very existence offered the promise of a world in which the short-term goals of self-interested states and leaders would be constrained by generally agreed rules and procedures, allowing the long-term common interests of peace and co-operation to prevail.
This promise is fast disappearing. The US, the world’s sole superpower, now sees itself as having little need for the UN and international law. On three occasions during the last eight months it has attacked other states without bothering to seek permission from the Security Council, even though that is the institution that the US and its treaty partners in 1945 charged with determining ‘the existence of any threat to the peace, breach of the peace, or act of aggression’ and to which they gave primary responsibility for deciding what measures are to be taken ‘to maintain international peace and security’.
In August 1998, the US justified attacks on Sudan and Afghanistan as acts of self-defence, which thus fell within the sole exception to the prohibition on the unilateral use of force set out in the UN Charter. Last December, it justified attacks on Iraq by arguing that they were authorised by Security Council resolutions adopted during the Gulf War – eight years ago. Both arguments stretched international law to breaking point. The right of self-defence requires a prior or imminent armed attack on the state that asserts such a right, and acts of self-defence are required to be necessary and proportionate. It remains unclear whether those who bombed the embassies in Kenya and Tanzania also had plans to attack targets within the US. Evidence of such plans, or even that the bombed factory in Sudan was actually being used to manufacture chemical weapons, has still not been placed before the Security Council – although it is required to be by the Charter. It is also unclear whether the acts of terrorist organisations can give rise to a right to launch armed attacks against the territorial integrity of another sovereign state.
As for Iraq, the US claims that Security Council Resolution 678, which authorised the use of force in 1991, remains in effect until such time as it has been rescinded by another resolution. One problem with this argument is that the US, as a permanent member of the Security Council, could veto any such rescinding resolution and thus retain the right to use force even if most – or all – of the other members of the Council opposed such action. Resolution 678 was in fact rescinded by Resolution 687, which concerned the enforcement of the ceasefire concluded between Iraq and the Security Council. And though Iraq has violated that ceasefire, it is for the Council – and not the US – to decide how to respond.
Then, on 24 March, the US and a number of other members of Nato (a regional defence alliance) inaugurated a lengthy programme of air-strikes against Serbia. This decision was taken without any attempt being made to discuss the matter in the Security Council. A draft resolution condemning the attack was quickly proposed by Russia, but defeated – in large part because the five Nato countries currently on the Council voted against it.
This marginalisation of the Security Council represents a major opportunity lost. At the beginning of the Nineties the US, while proclaiming itself the victor in the Cold War, magnanimously asserted that this provided an opportunity for the UN to fulfil its long-promised role as the guardian of international peace and security. The Security Council saw new possibilities for action without the paralysing veto; the Secretary-General laid out grand plans with ‘An Agenda for Peace’. In President Bush’s words, ‘the rule of law would supplant the rule of the jungle.’
The rhetoric was euphoric, utopian and short-lived. It soon became clear that this new world order was beset by the same problems as the old one. National interest continued to dominate geopolitics, even if the Security Council was now able – on occasion – to serve as a rubber stamp for military actions that coincided with the interests of its five permanent members (notably the US and France).
The success of Operation Desert Storm against Iraq in 1991 served as a template for subsequent military intervention ‘authorised’ by the Security Council. This was dependent on the willingness of the US and its allies to undertake (and fund) a military operation. The Council gave them wide discretion to determine when and how the loosely defined goals might be achieved, and limited its own involvement to a vague request to be ‘regularly informed’.
Driven by images of starvation in Somalia, the US once again led the good fight in 1992, its Marines landing in the glare of television lights. But the objectives of the mission were unclear and the first US casualties (18, in a country where over 300,000 Somalis had perished) raised questions back home about what the US was fighting for. Blame was quickly focused on the UN. US troops would again operate under foreign command ‘as soon as it snows in Mogadishu’, one American officer commented during an ignominious retreat. In fact the US troops had remained at all times under US command and control; it was legitimacy alone that the UN had given them.
Rwanda suffered for the sins of the Somali warlords. US officials refused even to use the word ‘genocide’ – now thrown about daily – until half a million Rwandans had been hacked to death. The Canadian Major-General Romeo Dallaire pleaded for just 5000 troops to stop the slaughter, but the Security Council’s first reaction was to reduce further the number of peacekeepers on the ground after Belgium withdrew its troops. France announced that it would send forces into the country whose Hutu militias (responsible for most of the killing) it had armed and trained. There were misgivings, but the Council eventually gave international legitimacy to Opération Turquoise since no other country was prepared to act. It came too late to do more than protect the génocidaires from Tutsi-led retribution.
Then came Bosnia – more evocative of the Holocaust than Rwanda had been because it was closer, there were more pictures, and the victims were white. Frustrated at the Serbian massacres of Bosnians in UN ‘safe havens’ and at Europe’s powerlessness to stop the madness, Nato found a cathartic release in air strikes. With the benefit of an ambiguously worded UN mandate, it bombed Serbian armour and supply lines in Bosnia. Its aerial superiority was perceived to have turned the tide against ethnic cleansing. Here, then, was a role that the Western powers could play, using superior technology to force the participants in ethnic warfare to come to their senses. This interpretation of events in Bosnia conveniently overlooked the fact that Croatia had recently launched a ground offensive, and that most participants were weary of battle and looking for a way out.
Here lay the seeds of the current débâcle in Kosovo. The West’s first mistake was not the decision to launch air strikes, but its earlier policy of escalating the conflict between Serbia and its Albanian minority by taking the side of the KLA – an organisation that the West now refuses to arm because it would give a platform to Islamic fundamentalism (and, curiously, because it would breach a Security Council resolution). But it was the air strikes, and the failure to obey the UN Charter, that turned the mistake into a disaster.
The repression in Kosovo was minor compared to similar conflicts elsewhere in the world, although knowing pundits warned that this was where the First World War had started. It was left to Henry Kissinger to point out that that conflict had begun precisely because of foreign intervention. This, too, was only a partial account. Kissinger failed to mention the importance of a highly mobilised military, and a loose interpretation of the right to use force. At the same time, he epitomised the absurd logic of most American analysts: no matter what folly led the US into battle, ‘victory is the only exit strategy.’
Tony Blair has cast the dilemma in apocalyptic terms: the world must do something, or do nothing. This misrepresents the situation on three counts. First, it is not the world but Nato that is acting. Secondly, his framing of the ethical quandary fails to ask whether the ‘something’ that Nato is prepared to do – bombing – is in fact better than nothing. Finally, it dismisses the possibility of any diplomacy other than that which follows guns and bombs.
It is sometimes argued that Nato is exercising a ‘right’ of humanitarian intervention. There is no support for this argument to be found in the UN Charter, a treaty that all member states agree prevails over all other international agreements. Moreover, the shallowness of the argument is made plain when one considers the likely reaction to any other state asserting such a right against the interests of the Western powers.
And this reaction is precisely what we should now expect. The contempt shown for international law by the Nato operation is likely to encourage regional powers elsewhere to assert their own view of order: Nigeria in West Africa, Russia in Central Asia, China in respect of Taiwan. The US has never sought a role as global policeman, but it, too, will now feel freer to use military force – in North Korea, perhaps? – without the burden of building consensus at the UN.
International law, and international institutions generally, serve the important purpose of placing constraints on radical, short-term changes of policy by individual states or groups of states. They thus give the chance for second thoughts, for negotiation and the achievement of goals by subtle, incremental and usually less destructive means. The decision made last October to threaten Milosevic with air strikes was based on the dubious assumption that the threat would never have to be made good. On the contrary, Milosevic called Nato’s bluff and now, obsessed with its ‘credibility’, the alliance is engaged in a futile war, unable to reach the soldiers and paramilitaries who conduct atrocities on the ground.
As a result of the conflict the UN has become increasingly marginalised. The Secretary-General Kofi Annan cannot openly condemn the operation for fear of driving the UN’s most important (if recalcitrant) contributor into isolation. Nor can he condone it openly for fear of further alienating many other states which are wary of US hegemony. Little wonder he has been studiously concentrating on his success in extraditing the two Libyans suspected of carrying out the Lockerbie bombing for a Scottish trial in the Netherlands.
The Security Council, for its part, is paralysed in a way that may render it more ineffective than at any time during the Cold War. With three of the permanent members having openly defied its authority, the veto is effectively dead. We have lost the normative safety-valve which, by denying legitimacy to an untold number of potential interventions, imposed a degree of constraint on political decision-makers and military planners for the better part of half a century.
The failure to respect the UN Charter has ensured that there is not – and never will be – a broad base of world opinion behind the West’s policies in the Balkans. Russia’s bluster reflects genuine concern at a Nato that is both expanding towards its borders and asserting a newly interventionist role in Eastern Europe. China and India – the next two superpowers? – have also spoken out against the conflict. States representing half the world’s population and three of its seven declared nuclear powers disagree with Nato’s policy.
As a result of these unilateral actions – in Sudan, Afghanistan, Iraq and Serbia – the spirit of co-operation that characterised the Security Council in the early Nineties has degenerated into animosity and disagreement. It is more than probable that Russia and China will now use their vetoes to block any further UN-mandated action anywhere. China recently refused to renew the mandate of a peacekeeping force in Macedonia, much to the chagrin of the three US soldiers captured by Serbia, who had originally been deployed under a UN mandate and might otherwise have continued to enjoy its protection.
The global situation has begun to resemble that of previous centuries, where military force was the preferred tool of the powerful, and the less powerful sought protection in alliances of convenience rather than international institutions and international law. Most disturbingly, the system created in 1945 to preserve peace and security has been seriously compromised at a time when many countries – not just Iraq – are acquiring weapons of mass destruction that threaten us all.
Will the international community be able to respond effectively to further challenges to peace and security, especially when it is not in the US national interest for action to be taken? Will the threat of unilateral force ensure peace if India and Pakistan again advance to the brink of nuclear confrontation, if North Korea attacks its neighbours, or if genocide is being committed in some far-flung region of the world? Are US threats and bombs the only tools left to preserve our fragile ‘peace’?
One might well conclude that the greatest long-term threat to peace is neither Slobodan Milosevic nor Saddam Hussein, but the impulsive (if well-meaning) sole remaining superpower – undeterred by rules and procedures, driven only by the inconstant winds of its own self-interest.