Break It, Don't Fake It

By Thomas M. Franck

Michael J. Glennon has announced the end of the U.N. peacekeeping system ("The New Internationalism," May/June 1999). He cautions us not to mourn the "death of the restrictive old rules on peacekeeping and peacemaking," however, since they have "fallen out of synch with modern notions of justice."

Glennon sees the United Nations' antiquated rules as responsible for the fact that most bloody conflicts in recent history have been simply ignored as "domestic matters" that lie beyond the system's jurisdiction. He asks that we now celebrate "America's new willingness to do what it thinks right -- international law notwithstanding."

These musings might have seemed plausible several months ago, when NATO was just gearing up to bomb Yugoslavia over its treatment of the Kosovars. NATO action was more attractive then, especially since the Security Council was paralyzed by Chinese and Russian support for Yugoslavia. But even then, Glennon's description of the United Nations' problem was wrong and his remedial prescriptions destabilizing.

The U.N. system is not hobbled by "old rules" that restrict forceful responses to situations of "domestic" violence or that preclude action in new situations of internal civil conflict. It is a mistake to cite Article 2(7) of the U.N. Charter as a ban on intervention "in matters which are essentially within the domestic jurisdiction of any state," for this restraint does not apply when the Security Council decides to impose "enforcement measures" under Chapter VII of the charter. Thus Glennon is wrong to argue that the rules bar action to halt intrastate violence: they simply require that the intervention first be approved by the Security Council.


Indeed, the council has authorized forceful tactics in numerous civil wars and against various regimes that oppress their own citizens: in Bosnia, Somalia, Rhodesia, South Africa, Haiti, and Iraq. And in December 1998, the Security Council used a Chapter VII resolution to demand that the Taliban end its oppression of women in Afghanistan, opening the door to future collective enforcement should they refuse.

Although it is true that the United Nations' responses to these and other domestic conflicts have ranged from the decisive to the ineffectual, in no case were the "old rules" of engagement the problem.

By blaming the "old" charter system for the failures -- without noticing successes like Namibia and Mozambique -- Glennon diverts attention from consideration of the United Nations' real but limited capabilities. He fails to recognize that the most decisive factor in containing civil conflict has proven to be the degree of American support for and participation in U.N.-authorized prophylactic measures. When American support is steadfast, U.N. efforts tend to achieve their objective, as in El Salvador. When it is weak, as in Somalia and Rwanda, the world body fails. These outcomes have little to do with the "old rules" or basic flaws in the system.

But what about the veto? Isn't NATO's use of force in Kosovo, without Security Council authorization, evidence of the United Nations' practical failure? Does not the shift in focus from a global (U.N.) to a regional (NATO) solution highlight the way Russia and China have managed to keep the world body from taking just and necessary measures?

To believe that is to misunderstand the role of the veto in the U.N. system. Russia and China, in opposing military action to support Kosovar autonomy, reflected their own insecurity over Chechnya and Tibet. The veto is metaphoric ritual like the lifting of a skunk's tail. It signals, Proceed with care. It therefore serves as a valuable aid to rational risk assessment. That we deplore its use in the circumstances of the Kosovo debacle does not mean either that the veto has lost its usefulness or that it has become an insuperable bar to action. After all, the veto can be avoided -- as during the Suez crisis of 1956 and the Congo crisis of 1961, when focus shifted from the veto-bound Security Council to the General Assembly. In the case of Kosovo the West acted through NATO. In each instance, actions were taken -- despite the veto -- because it was judged worth the risk. Conversely, it is assuredly not fear of the Chinese veto that prevents more forceful Western action on behalf of Tibet.

Glennon, in sum, is wrong to blame the "old rules." They work as well, or as badly, as states want or allow them to.


Bad analysis produces worse prescription. Glennon would have us scrap the current rules of the game, do the right thing, and then write new ones. "If power is used to do justice," he argues, "law will follow."

But follow where? Back to a future in which rival blocs fix things in their neighborhood: NATO in the Balkans, the former Soviet states in the Baltic region, the Arab League on the West Bank, ECOMOG (the peacekeeping arm of the Economic Community of West African States) in western Africa? Is it really time to reinvent multiple versions of the Concert of Europe?

Glennon's unpalatable "system-up" approach to remedying the United Nations' undoubted problems obscures the real issue posed by Kosovo. What does a nation like the United States -- one with the power and the will to ameliorate a human catastrophe -- do when, to act, it must violate general rules of the game? India faced that choice before invading East Pakistan to stop the slaughter of Bengalis in 1971. People stranded on mountains or in lifeboats face a comparable personal choice when, to save many, they contemplate cannibalizing one of their number. NATO's action in Kosovo is not the first time illegal steps have been taken to prevent something palpably worse.

Law gives those taking such illegal but necessary action several well-established defensive strategies. They may deny having been authors of the illegal act, or argue that the act is not actually illegal. They may call for a change in the law to make their action legal. Or they may argue mitigation, by showing that their illegal conduct was still the least-unacceptable possible outcome. Every law student knows that even cannibalism, if demonstrably the least-gruesome alternative in the circumstances, is treated leniently by the law.

But they also know that it would be no advance for civilized society if the legal impediments to cannibalism were dismantled. Laws, including the U.N. Charter, are written to govern the general conduct of states in light of historic experience and the requisites of good order. If, in a particular instance, a general law inhibits doing justice, then it is up to each member of the community to decide whether to disobey that law. If some so choose, however, their best strategy is not to ridicule, let alone change the law: it is to proffer the most expiating explanation of the special circumstances that ordained their moral choice.

Thomas M. Franck is Murry and Ida Becker Professor of Law and Director of the Center for International Studies at New York University's School of Law.


By Edward C. Luck

By caricaturing the past, misreading the U.N. Charter, and prematurely divining the lessons of Kosovo, Michael J. Glennon concludes that international law and practice have entered a brave new humanitarian world and that the restrictive old United Nations should step aside. But the present is not so radically different from the past, and Glennon's argument sheds no light on those persistent political dilemmas that confound international law and organizations as perplexingly in 1999 as they did in 1945 and 1919.

While others warn of U.N. meddling, Glennon roughly asserts that the U.N. Charter is fundamentally anti-interventionist. Although any number of repressive governments have claimed that the United Nations is prohibited from intervening in their internal affairs, the charter specifically grants the Security Council authority to override this principle if it finds a potential threat to international peace and security. More incrementally but more powerfully, the very principles and purposes of the charter -- with their emphasis on human rights, fundamental freedoms, humanitarian values, and economic and social development -- have undermined barriers to outside scrutiny that have been erected by repressive regimes.

Contrary to Glennon's contention, the charter does not require a "cross-border attack" to permit international enforcement action. Aggression is only one of several possible triggers stipulated in Chapter VII, which uses broad terminology to permit considerable discretion by the members of the Security Council.

Glennon makes a number of uncharacteristically sweeping claims. He baldly contends that the international interventions in Haiti, Somalia, and Rwanda "flew in the face of the constraints of the charter and 40 years of U.N. precedent." Yet in 1960, almost 40 years ago, the United Nations responded to civil strife in the Congo with one of its largest and riskiest military operations ever. And its mission in Cyprus has been one of its longest. Beginning in the early 1960s, the General Assembly and then the Security Council imposed sanctions on South Africa for its racist internal policies, which the Security Council in 1960 labeled a potential threat to international peace and security. And half of the 15 current U.N. peacekeeping operations and 18 of the 34 completed missions have focused on civil conflict.

As he to some extent acknowledges, Glennon's projections about the "new order" also rest on shaky ground. NATO's unanimity rule, selective membership, and hesitancy on Bosnia, Kosovo, and out-of-area involvement in general make it a most unlikely enforcer of a new global order. In this regard, the West's concern for justice in Kosovo is more refreshing than encouraging, given its reluctance to counter barbarism elsewhere. Would Glennon care to tell the people of Sierra Leone, Congo, Liberia, Rwanda, Sudan, and Afghanistan about his "just new order"? Is he so confident that Kosovo will end well and become the model for the future?

The United Nations needs NATO, as well as partners in other regions, and NATO needs the United Nations. Military strikes alone do not curb terrorism, civil strife, or aggression. Norm building, diplomacy, peacekeeping, arms monitoring, information sharing, nation building, and economic sanctions -- areas where the United Nations has much to contribute -- should remain part of the world's policy arsenal.

In the end, Glennon admits that justice requires legitimacy -- something his new order has yet to acquire and the United Nations has yet to lose. The high purposes espoused by the world body make a difference, even when the organization lacks either the political consensus or the physical means for effective enforcement, because over the years they have fostered the kinds of norms, public attitudes, and transnational political values that Glennon sees as the foundation for a broader sense of what is just and legitimate. Although he is right to recognize that the international legal and political culture is evolving, his call to abandon the vehicle that helped get us this far is dangerously misguided.

Edward C. Luck is Executive Director of the Center for the Study of International Organization of New York University's School of Law and the Woodrow Wilson School of Princeton University.


By Walter J. Rockler

Michael J. Glennon seems to advocate adventures in ad hoc international punishment of those we deem to be evildoers. In his view, international vigilante practices or lynch law should replace respect for national sovereignty (at least as far as small states are concerned).

Conceding that interstate interventions violate firmly established international law and the U.N. Charter, Glennon offers the very questionable view that the real threat today comes not from interstate attacks but from internal, intrastate violence. Undoubtedly, terrible crimes have been committed and continue to be carried out within state boundaries. Nevertheless, opening the door to ad hoc intervention by the strong against the weak does not assure any form of security or justice. Traditionally, this practice has been known as "imperialism," and has not always been beneficent.

It is true, as Glennon claims, that "a child saved from ethnic cleansing in Kosovo . . . is no less alive because the intervention was impromptu." But it is no less true that a child killed by NATO bombing is as dead as a child killed any other way. Military intervention tends not to be kindly. Moreover, it is far from clear that the Kosovo bombing has saved a single child.

Glennon, like numerous other apologists for our allegedly benevolent actions, contends that basic human rights transcend sovereignty considerations. Reformation of international institutions and international law to provide a basis for enforcement of human rights is plainly in order. The United States could take the lead in this effort, but sees no reason to bother. It may be worth noting that it took this country more than 40 years to ratify the toothless Genocide Convention.

Today, American power is dominant, but this may prove to be quite temporary. Furthermore, our exercise of power has not always been in the pursuit of justice or international security or human values (consider our actions in Guatemala, El Salvador, Nicaragua, Panama, or Chile). A trusting patriotism is therefore not always the most reliable guide to truth and justice.

Walter J. Rockler is a former prosecutor of the Nuremberg War Crimes Tribunal.


Thomas M. Franck, an old friend and collaborator, is unfortunately correct: we disagree about both problem and prescription.

To me, the problem is that the U.N. Charter disables the Security Council from stopping intrastate genocide. The authority it confers on the council is too narrow. And even when the council could otherwise act, the charter permits a veto.

Franck responds to the first point by conjuring up the same picture of sweeping Security Council powers that he did during the Gulf War. Then, he insisted (against the overwhelming weight of authority) that the Security Council could lawfully requisition troops from unconsenting member states. Now he asserts that the rules do not bar action to halt intrastate violence so long as the intervention is approved by the Security Council.

But the Security Council is in fact precluded from approving such intervention: Article 39 of the U.N. Charter prohibits enforcement action absent "any threat to the peace, breach of the peace, or act of aggression." Genocide may sometimes entail such cross-border violence, but it need not -- and did not in Iraq, Uganda, or Cambodia. Were Franck right about the council's powers, Russia and China would surely be surprised to discover that only their potential veto would have prevented lawful foreign intervention to stop the slaughters in Chechnya or Tiananmen.

That the Security Council has occasionally approved enforcement action where no cross-border violence has occurred (in Haiti, Somalia, etc.) shows not that its interventionist power is unlimited, as Franck strains to argue, but merely that the U.N. Charter imposes no checks when those limits are transgressed.

To me, the veto is part of the problem. To Franck, it is not. He argues that the veto was not an "insuperable bar to action" in Kosovo because "the West acted through NATO" instead of the United Nations. But as Franck himself acknowledges, NATO's action was illegal; because the skunks raised their tails, the Security Council never approved any action and so NATO simply ignored it. That the U.N. Charter's rigidity can be overcome only by going around it is hardly evidence of the veto's "usefulness." Is a skunk's tail in the air merely a "metaphoric ritual" if it breaks up the picnic?

From these arguments Franck deduces that there is no problem with the "old rules," which "work as well, or as badly, as states want." But he fails to ask the big question: Why then do all 19 NATO democracies find it necessary to flout these moth-eaten rules? Franck himself suggested the answer in a 1972 article entitled "Who Killed Article 2(4)?" "The prohibition against the use of force in relations between states has been eroded beyond all recognition," he wrote, by "the wide disparity between" the prohibition and "the practical goals the nations are pursuing in defense of their own national interest."

Seeing no problem, Franck proffers no solution. Rather, he defends the status quo by trying to bolster his claim that the charter permits its own violation. No change in it is necessary, he argues, because the law allows illegal conduct under mitigating circumstances. But law, by definition, never countenances illegal conduct. The integrity of every legal system depends on its ability to promote compliance and discourage noncompliance.

Ignoring the destabilizing costs of law-breaking, Franck approves of NATO's breaching the charter by intervening in Kosovo without Security Council approval. He is opposed to modifying the charter to permit such intervention, however, since he thinks that would be like legalizing cannibalism. I find it difficult to compare unlawfully stopping genocide with unlawfully eating a companion to survive. Cannibalism for the purpose of survival is too rare to justify redefining murder, whereas intrastate genocide has occurred all too often to remain legally protected. When the exigencies of justice repeatedly conflict with a given rule, the rule of law is better served by changing that law to make it just.

Edward Luck evidently believes that no measure of barbarism can ever justify military intervention without Security Council approval. Like Franck, he ignores the charter's plain language in asserting that the council has authority to intervene in internal strife. Luck's claim, however, rests upon inapposite precedent -- peacekeeping (not Chapter VII peace enforcement) operations in the Congo, Cyprus, and elsewhere. He thus misses a crucial distinction: in these cases, the sitting government consented to the United Nations' presence. My point, of course, was that under long-standing practice the United Nations has not forcibly intervened (i.e., without local consent) to halt civil strife. Luck apparently views the difference between governmental consent and objection as an artificially sharp distinction. I do not.

Walter J. Rockler is right to oppose intervention that is ill-planned, poorly executed, based on a pretext, or disproportionately costly; I do too. He is wrong, however, to regard intervention as inevitably imperialistic simply because it is perilous and sometimes misconceived; wrong to oppose the use of power to do good simply because power is transient and sometimes abused; and wrong to reject ad hoc intervention as a stopgap simply because the international community has not yet crafted rules to reflect the widespread belief that intrastate genocide is no longer entitled to the protection of sovereignty.

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

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