World Order and its Rules


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 U.S. made that clear in the debates
that led to the NATO decision. The more closely one approached the conflicted
region, the greater in general was the opposition to Washington’s insistence
on force, even within NATO (Greece and Italy). Again, that is not an unusual
phenomenon: another recent example is U.S./UK bombing of Iraq, undertaken in
December 1998 with unusually brazen gestures of contempt for the Security
Council—even the timing, coinciding with an emergency session to deal with the
crisis. Still another illustration is Clinton’s destruction of half the
pharmaceutical production of a small African country a few months earlier. It
was dismissed here as a marginal curiosity, though comparable destruction of
U.S. facilities by Islamic terrorists might evoke a slightly different reaction.
Perhaps this is an example of the kind of "creative deterrence" advised by
the U.S. Strategic Command, 1995, aiming at what "is valued within a
culture," such as the fate of children dying from easily curable disease.

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

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

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

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.

from Chomsky’s The New Military Humanism (Common Courage, 1999)