As the twentieth century fades away, so too does the international consensus on when to get involved in another state's affairs. The United States and NATO -- with little discussion and less fanfare -- have effectively abandoned the old U.N. Charter rules that strictly limit international intervention in local conflicts. They have done so in favor of a vague new system that is much more tolerant of military intervention but has few hard and fast rules. What rules do exist seem more the product of after-the-fact rationalization by the West than of deliberation and pre-agreement.

The death of the restrictive old rules on peacekeeping and peacemaking -- under which most bloody conflicts were simply ignored as "domestic matters" -- should not be mourned. Events since the end of the Cold War starkly show that the anti-interventionist regime has fallen out of sync with modern notions of justice. The crisis in Kosovo illustrates this disjunction and America's new willingness to do what it thinks right -- international law notwithstanding. The horror of ethnic cleansing in the Serbian province was well publicized. As Slobodan Milosevic thumbed his nose at the international community, pressure built to use force against him, whether the U.N. Charter allowed it or not. Thus when the Western allies launched air strikes, the move was largely popular. It was not, however, technically legal under the old regime. After all, Kosovo is still part of Yugoslavia. No cross-border attack -- the one circumstance where the charter allows an international military response -- had occurred, and the Security Council had never authorized NATO military measures.

Thus in Kosovo, justice (as it is now understood) and the U.N. Charter seemed to collide. But it is not only that the U.N. Charter prohibits intervention where enlightened states now believe it to be just -- its problems run even deeper. For the charter is grounded on a premise that is simply no longer valid -- the assumption that the core threat to international security still comes from interstate violence. This assumption is no longer true. Moreover, thanks to Cold War deadlock and the veto power held by the five permanent members of the Security Council, the old rules never prevented such interstate violence in the first place (witness Afghanistan, Vietnam, etc.).

Whether the cost of abandoning the old anti-interventionist structure will be offset by the benefits of the newly emerging one remains to be seen. Replacing a formal system with a set of vague, half-formed, ad hoc principles can be dangerous. Untested rules may have unexpected consequences, and justice formed on the fly may come to be resented. The failings of the old system were so disastrous, however, that little will be lost in the attempt to forge a new one.


Just as generals too often refight the last war, when the drafters of the U.N. Charter set its limits on state power, they responded to the crises precipitating World War II, without anticipating those that would follow it. They devised a legal regime they hoped would govern the use of force for generations to come -- recognizing all states as sovereign equals, prohibiting interference in their internal affairs, and permitting the nondefensive use of force only when authorized by the U.N. Security Council, and then only in limited circumstances (when provoked by "any threat to the peace, breach of the peace or act of aggression"). Reflecting the mindset of its makers, the charter's core prohibitions are directed at invasion, the paradigm being the 1939 German takeover of Poland. The transcendent problem, it was thought in 1945, was interstate conflict. But the recurrent problem today is intrastate violence, which is not addressed effectively by the charter. Thus in Haiti, Somalia, and Rwanda -- all conflicts within a single country -- when the international community stepped in to halt the slaughter of civilians, it did so without the blessing of international law. Although intervention was authorized by the Security Council, its consent flew in the face of the constraints of the charter and 40 years of U.N. precedent that virtually ignored civil war and instability. The charter regards internal violence as a question of "domestic jurisdiction" only -- that is, beyond official international concern.

To the extent that interstate violence persists in 1999, it does so in a form to which the charter is oblivious: state-sponsored terrorism. The two Libyans indicted for the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland, have yet to be brought to justice (although talks are ongoing), despite the efforts of their victims' families and fruitless U.N. sanctions. Although Chile's intelligence chief was finally imprisoned in that country in 1995 for ordering the 1976 assassination of Orlando Letelier in Washington, this was due largely to unilateral pressure from the United States -- no sanction was ever imposed on Chile by the United Nations. When American embassies were bombed in Kenya and Tanzania last August, world attention focused entirely on the propriety of American air strikes against perpetrators allegedly ensconced in Afghanistan and Sudan; the idea that the United Nations might actually do something to combat such bombings was never even raised, so conditioned had observers become to expect it to do nothing.

Had it ever been effective in curbing interstate violence, the charter's anachronistic focus on such conflicts might be tolerable. But it was not. The charter generated no formal international response to Soviet intervention in Hungary, Czechoslovakia, or Afghanistan, none to American intervention in the Dominican Republic, Grenada, Panama, or Nicaragua, and none to that of India in Goa, Indonesia in East Timor, China in Tibet, Argentina in the Falklands, or Vietnam in Cambodia, or to the countless other cross-border military excursions since 1945. Diplomatic historians have yet to identify a single instance of interstate violence that was actually stopped by the United Nations.

The organization's paralysis in such crises has often been due to abuse of the Security Council veto, a power exclusive to the body's five permanent members. Originally meant as a check on unilateral power, the veto was transformed over time into a tool for reallocating it from stronger states to weaker ones. Since the Soviet Union's collapse, the requirement of unanimity among the council's five permanent members has provided a lever for France, Russia, and China to pry their way into a disproportionately powerful diplomatic position not otherwise afforded them by their economic or military power. When last year the United States threatened force to curb Iraqi misbehavior, for example, these states exploited their vetoes by stalling the process for their own diplomatic gain. The charter served the strategic objective of France, Russia, and China -- to transform a unipolar post-Cold War world into a multipolar one -- far better than it did that of the United States or much of the rest of world.

Having analyzed the many problems in the current regime and NATO's new willingness to circumvent it, discussion often grinds to a halt. This is understandable, since those who cherish the rule of law are loath to counsel law-breaking in any form, no matter how dysfunctional the status quo has become. It is far easier to paper over problems in the current system than to admit that it no longer works. But challenging a law is not synonymous with challenging the rule of law. Quite the contrary: challenging an unjust law (as NATO has done with the charter) can actually reinforce the legal regime. Openly breaking the law is much less dangerous than only pretending to comply with it, since disingenuous, disguised violations undermine the open debate on which legal reform and the law's legitimacy depend.


If the costs of abandoning the old anti-interventionist regime would be minimal, what of the benefits of adopting a new one? The calculus is difficult, since the contours of the new regime have only dimly emerged and many questions about its implementation remain (for example, will the U.N. Charter need revision?). Nonetheless, some general observations can be made.

The West's new rules of thumb on intervention accord less deference to the old idea of sovereign equality -- the erstwhile notion that all countries, large or small, are equal in the eyes of the law. The new posture recognizes the hollowness of this concept, accepting that all states are not in fact the same in their power, wealth, or commitment to human rights or peace. The new system acknowledges something else the U.N. Charter overlooks: that the major threats to stability and well-being now come from internal violence as or more often than they do from cross-border fighting -- and that to be effective, international law needs to stop the former as well as the latter. As before, the new regime allows that domestic order is the primary and initial responsibility of the state; the difference now is that intervention has been deemed appropriate where the humanitarian costs of failing to intervene are too high (as in cases of genocide). Intervention on a pretext -- toppling a government in the name of international law just because its political or economic philosophy is objectionable to some other state -- is still prohibited. How this will be policed remains unclear (as do many details of the new system), but as a safety measure, the new regime favors multilateral intervention over unilateral action. The hope is that building a multinational coalition will filter out the worst forms of national self-interest and keep them from playing a leading role in international intervention.

Still, the new regime will not represent the true rule of law. Like the counterinterventionist norms of the U.N. Charter, it too will replicate existing power dynamics. For many of the same reasons that the international community was unable in 1945 to establish a true global legal system, the effort to do so today is almost surely doomed. States continue to distrust concentrations of state power, and rightly so. The risks posed by a universal system that provides no escape from lawfully centralized coercion remain greater than the risks of a system that lacks coercive enforcement mechanisms. No one, as yet, has devised safeguards sufficient to guarantee that power will not be abused by the strong, that coercion will not be misdirected to undermine the values that it was established to protect. Until such safeguards are devised, the global rule of law will remain a dream.

But what of justice? Can it be achieved in the meantime? That a new interventionist regime might not at the outset be a legal one does not mean that enhanced global justice need remain a fantasy. International justice can in fact be pursued ad hoc, without a fully functioning legal system. This evidently is what NATO and the United States have recently set out to do. And they have achieved some success: A child saved from ethnic cleansing in Kosovo by NATO's intervention is no less alive because the intervention was impromptu rather than part of a formal system. Even so, the long-term systemic consequences of such interventions must be considered when the system is established. If they are not, the risk arises that the old regime might be scrapped in favor of one that undermines, rather than enhances, justice.

The question, then, is how the long-term systemic consequences are best assessed. Would it be better to rethink collectively and comprehensively when intervention ought to be expected, rather than to make decisions on the fly in a melee of international violence? The issue, as the political scientist Thomas C. Schelling has put it, is whether "some collective and formally integrated attack on [global] issues can do a better job than coping piecemeal, ad hoc, unilaterally, opportunistically." By making no choice, by resolving intervention issues case-by-case with respect to Iraq, Kosovo, and earlier crises, the United States and NATO have endorsed the latter option.


There is, of course, ample precedent for the ad hoc, opportunistic approach. The Peace of Westphalia, signed to conclude the Thirty Years' War in 1648, legitimated the notion of sovereignty and the modern state system. The treaty's drafters sought to balance one equal, independent state or group of states against another, in the belief that the resulting principe d'equilibre would secure a stable, lasting peace. Following the Napoleonic Wars, the 1815 Congress of Vienna re-established that equilibrium for about 40 years, until percolating nationalism and liberalism proved uncontrollable.

Ever since Athens founded the Delian League in 478 B.C., however, humanity has striven to establish a structure for truly lasting peace, before conflict erupts -- not after. Recent hopes have focused on joining states together into international organizations with supranational force. This reflects the prevailing belief that the balance of power, however skillfully the scaffolding of state sovereignty might be aligned, cannot last. Something more is needed. The 1919 Treaty of Versailles represented the first effort to establish an alternative, an activist international peacekeeping mechanism: namely, the League of Nations. The 1945 U.N. Charter sought to perfect the collective enforcement model by establishing a supranational authority, the U.N. Security Council, to deal with miscreant states.

Both systems -- balance of power and the integrative model -- represented efforts at imposing the rule of law, albeit in profoundly different versions, to check interstate violence. Each, in its own way, failed.

The question therefore remains open as to which approach better maintains world order. Neither can claim superiority in purely utilitarian terms. A treaty approach, however, presents a distinct advantage over improvisation: greater legitimacy.

In 1999, written texts appear more legitimate than customary norms. The history of international law in this century has been a history of codification, a process in which one custom after another -- diplomatic immunity, treaty law, use of force -- has been committed to paper. Codification lessens the risk of error and promotes reliance. Enhanced predictability and more regularized behavior result. The old rules of the charter have been accorded the dignity of a solemnly negotiated text; anything less formal would produce new rules of lesser stature.

It is therefore dangerous for NATO to unilaterally rewrite the rules by intervening in domestic conflicts on an irregular, case-by-case basis. The test of the new interventionism is not whether it can be contrived to generate immediate popular support. Of course it can, at least in influential Western publics, in ways known to all military planners and their publicists: with smart-bomb strikes portrayed in the media as being undertaken only after patience has run out. Such attacks are a swift, short, and successful method of punishing a demon and vindicating international honor. They produce few (CNN-reported) civilian deaths and still fewer Western casualties. The script for successful military spinning is no state secret.

But that script is not the best way to give a new interventionist regime long-term acceptance. The real test of a new system will be whether succeeding generations throughout the community of nations -- not simply in centers of wealth and power -- believe the system and the actions it prescribes to be just. Case-by-case decisions to use force, made by the users alone, are not likely to generate such support. Even if the purposes are widely approved of, sooner or later the exclusionary decision-making process is likely to create resentment, particularly as inevitable foul-ups occur and lives are lost through error and oversight. Justice, it turns out, requires legitimacy; without widespread acceptance of intervention as part of a formal justice system, the new interventionism will appear to be built on neither law nor justice, but on power alone. It will then be only a matter of time before the meddling of the illegitimate interventionist regime is rejected just as roundly as was the one it replaced.

The new interventionists must reconcile the need for broad acceptance of their regime with the resistance of the defiant, the indolent, and the miscreant. Proponents of the new regime must assess whether the cost of alienating the disorderly outweighs whatever benefits can be wrought in the form of a more orderly world. Ultimately, the question will be empirical; unless a critical mass of nations accepts the solution that NATO and the United States stand ready to offer, that solution will soon be resented. But the new interventionists should not be daunted by fears of destroying some lofty, imagined temple of law enshrined in the U.N. Charter's anti-interventionist proscriptions. The higher, grander goal that has eluded humanity for centuries -- the ideal of justice backed by power -- should not be abandoned so easily. Achieving justice is the hard part; revising international law to reflect it can come afterward. If power is used to do justice, law will follow.

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  • Michael J. Glennon is Professor of Law at the University of California, Davis, Law School. He is a former Legal Counsel to the Senate Foreign Relations Committee and the author of Constitutional Diplomacy.
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