Break It, Don't Fake It

Break It, Don't Fake ItAuthor(s): Thomas M. FranckSource: Foreign Affairs, Vol. 78, No. 4 (Jul. - Aug., 1999), pp. 116-118Published by: Council on Foreign RelationsStable URL: http://www.jstor.org/stable/20049370 .

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Responses

Sidelined in Kosovo?

The United Nations' Demise Has Been Exaggerated

Break It, Dont Fake It THOMAS M. FRANCK

Michael J. Glennon has announced the

end ofthe U.N. peacekeeping system

("The New Internationalism," May/June

1999). He cautions us not to mourn

the "death ofthe restrictive old rules on

peacekeeping and peacemaking," how

ever, 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

systems jurisdiction. He asks that we

now celebrate "Americas 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 ofthe Kosovars. Nato

action was more attractive then, especially since the Security Council was

paralyzed

by Chinese and Russian support for

Yugoslavia. But even then, Glennons

description ofthe United Nations'

[116]

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) ofthe 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 ofthe 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.

WHERE THERE'S A WILL . . .

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.



Sidelined in Kosovo?

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 ofthe

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 ofthe 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 force

ful 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.

UNCIVIL DISOBEDIENCE

Bad analysis produces worse prescription. Glennon would have us scrap the current

rules ofthe 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

ofthe Economic Community of West

African States) in western Africa? Is it

really time to reinvent multiple versions

ofthe 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

FOREIGN AFFAIRS July/August 1999 [117]



Franck, Luck, ?tal.

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 ofthe 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 alter

native 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 ofthe 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 ofthe special circumstances that ordained

their moral choice.

thomas M. franck is Murvy and Ida

Becker Professor of Law and Director ofthe Center for International Studies at New York

University's School of Law.

A Road to Nowhere 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 prac tice 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-interven

tionist. 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 ofthe

charter?with their emphasis on human

rights, fundamental freedoms, humani

tarian 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 ofthe Security Council.

[ll8] FOREIGN AFFAIRS - Volume78No.4



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Break It, Don't Fake It