The rules of the game
By Noam Chomsky
There is a regime of international law and international order, binding on all states, based on the United Nations Charter and subsequent resolutions and World Court decisions. In brief, the threat or use of force is banned unless explicitly authorised by the Security Council after it has determined that peaceful means have failed, or in self-defence against "armed attack" until the Security Council acts.
There is at least a tension, if not an outright contradiction, between the rules of world order laid down in the UN Charter and the rights articulated in the Universal Declaration of Human Rights, a second pillar of the world order established under US initiative after World War II. The charter bans force violating state sovereignty; the declaration guarantees the rights of individuals against oppressive states.
The issue of "humanitarian intervention" arises from this tension. It is the right of "humanitarian intervention" that is claimed by the US/NATO in Kosovo, and that is generally supported by editorial opinion and news reports.
The right of humanitarian intervention, if it exists, is premised on the "good faith" of those intervening, and that assumption is based not on their rhetoric but on their record, in particular their record of adherence to the principles of international law, World Court decisions and so on.
That is indeed a truism, at least with regard to others. Consider, for example, Iranian offers to intervene in Bosnia to prevent massacres at a time when the West would not do so. These were ignored; if there was a reason beyond subordination to power, it was because Iranian "good faith" could not be assumed.
A rational person then asks obvious questions: is the Iranian record of intervention and terror worse than that of the US? And how should we assess the "good faith" of the only country (the US) to have vetoed a Security Council resolution calling on all states to obey international law? What about its historical record? How do these considerations apply in the case of Kosovo?
There has been a humanitarian catastrophe in Kosovo in the past year, overwhelmingly attributable to Yugoslav military forces. The main victims have been ethnic Albanian Kosovars, some 90% of the population of this Yugoslav territory.
In such cases, outsiders have three choices:(i) try to escalate the catastrophe, (ii) do nothing, or (iii) try to mitigate the catastrophe. The choices are illustrated by other contemporary cases.
In Colombia, according to State Department estimates, the annual level of political killing by the government and its paramilitary associates is about at the level of Kosovo, and refugee flight primarily from their atrocities is well over a million.
Colombia has been the leading Western hemisphere recipient of US arms and training as violence increased through the '90s, and that assistance is now increasing, under a "drug war" pretext. The Clinton administration was particularly enthusiastic in its praise for President Gaviria, whose tenure in office was responsible for "appalling levels of violence", according to human rights organisations.
In this case, the US reaction is (i): escalate the atrocities.
By very conservative estimates, Turkish repression of Kurds in the '90s falls in the category of Kosovo. It peaked in the early '90s; one index is the flight of more than 1 million Kurds from the countryside to the unofficial Kurdish capital Diyarbakir from 1990 to 1994, as the Turkish army was devastating the countryside.
1994 marked two records: it was "the year of the worst repression in the Kurdish provinces" of Turkey, Jonathan Randal reported from the scene, and the year when Turkey became "the biggest single importer of US military hardware and thus the world's largest arms purchaser". When human rights groups exposed Turkey's use of US jets to bomb villages, the Clinton administration found ways to evade laws requiring suspension of arms deliveries, much as it was doing in Indonesia and elsewhere.
Colombia and Turkey explain their (US-supported) atrocities on grounds that they are defending their countries from the threat of terrorist guerillas. As does the government of Yugoslavia.
In Turkey, the US reaction is again (i): try to escalate the atrocities.
Every year thousands of people, mostly children and poor farmers, are killed in the Plain of Jars in northern Laos, the scene of the heaviest bombing of civilian targets in history, it appears, and arguably the most cruel.
Washington's furious assault on a poor peasant society had little to do with its wars in the region. The worst period was from 1968, when Washington was compelled to undertake negotiations (under popular and business pressure), ending the regular bombardment of North Vietnam. Kissinger and Nixon then decided to shift the planes to bombardment of Laos and Cambodia.
The deaths are from "bombies", tiny anti-personnel weapons designed specifically to kill and maim, and have no effect on trucks, buildings etc. The plain was saturated with hundreds of millions of these criminal devices.
These were only a fraction of the technology deployed, including advanced missiles to penetrate caves where families sought shelter. Current annual casualties from "bombies" are estimated from hundreds a year to "an annual nationwide casualty rate of 20,000", more than half of them deaths, according to veteran Asia reporter Barry Wain of the Wall Street Journal.
A conservative estimate, then, is that the crisis this year is approximately comparable to Kosovo, though deaths are far more highly concentrated among children.
The British-based Mine Advisory Group is trying to remove the lethal objects, but says that the US refuses to provide it with "render harmless procedures", which remain a state secret, as does the whole affair in the US.
In this case, the US reaction is (ii): do nothing. And the reaction of the media and commentators is to keep silent, following the norms under which the war against Laos was designated a "secret war".
There are much more serious contemporary atrocities, such as the huge slaughter of Iraqi civilians by the blockade — "a very hard choice", Madeleine Albright commented in 1996 when asked for her reaction to the killing of half a million Iraqi children in five years, but "we think the price is worth it".
In Kosovo the threat of NATO bombing, predictably, led to a sharp escalation of atrocities by the Serbian army and paramilitaries. Commanding General Wesley Clark declared that it was "entirely predictable" that Serbian terror and violence would intensify after the NATO bombing. Kosovo is therefore another illustration of (i): try to escalate the violence, with exactly that expectation.
To find examples illustrating (iii) is all too easy if we keep to official rhetoric. A recent academic study of "humanitarian intervention" by Sean Murphy reviews the record after the Kellogg-Briand Pact of 1928 which outlawed war, and then since the UN Charter, which strengthened and articulated these provisions.
In the first phase, he writes, the most prominent examples of "humanitarian intervention" were Japan's attack on Manchuria, Mussolini's invasion of Ethiopia and Hitler's occupation of parts of Czechoslovakia. All were accompanied by uplifting humanitarian rhetoric and factual justifications.
Japan was going to establish an "earthly paradise" as it defended Manchurians from "Chinese bandits". Mussolini was liberating thousands of slaves as he carried forth the Western "civilising mission". Hitler announced Germany's intention to end ethnic tensions and violence, and "safeguard the national individuality of the German and Czech peoples" in an operation "filled with earnest desire to serve the true interests of the peoples dwelling in the area".
Compare those obscene justifications with those offered for interventions, including "humanitarian interventions", in the post-UN Charter period.
Perhaps the most compelling example of (iii) is the Vietnamese invasion of Cambodia in December 1978, terminating Pol Pot's atrocities, which were then peaking. Vietnam pleaded the right of self-defence against armed attack, one of the few post-Charter examples when the plea was plausible: the Khmer Rouge regime (Democratic Kampuchea, DK) was carrying out murderous attacks against Vietnam in border areas.
The US press condemned the "Prussians" of Asia for their outrageous violation of international law. They were harshly punished for the crime of having terminated Pol Pot's slaughters, first by a (US-backed) Chinese invasion, then by US imposition of extremely harsh sanctions.
The US recognised the expelled DK as the official government of Cambodia, because of its "continuity" with the Pol Pot regime, and supported the Khmer Rouge in its continuing attacks in Cambodia. The example reveals the "custom and practice" that underlie "the emerging legal norms of humanitarian intervention".
Contempt for international law
Despite 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 US made that entirely clear in the discussions leading to the NATO decision.
Apart from the UK, NATO countries were sceptical of US policy. France had called for a UN Security Council resolution to authorise deployment of NATO peacekeepers.
The US flatly refused, insisting on "its stand that NATO should be able to act independently of the United Nations", State Department officials explained. The US refused to permit the "neuralgic word 'authorise'" to appear in the final NATO statement, unwilling to concede any authority to the UN Charter and international law; only the word "endorse" was permitted.
Similarly, the bombing of Iraq was a brazen expression of contempt for the UN.
A review of the internal documentary record demonstrates that the stance traces back to the first memorandum of the newly formed National Security Council in 1947. During the Kennedy years, the stance began to gain overt expression.
The main innovation of the Reagan-Clinton years is that defiance of international law and the UN Charter has become entirely open. The highest authorities explained with brutal clarity that the World Court, the UN and other agencies had become irrelevant because they no longer follow US orders, as they did in the early postwar years.
While the Reaganites broke new ground, under Clinton the defiance of world order has become so extreme as to be of concern even to hawkish policy analysts. In March, in the leading establishment journal Foreign Affairs, Samuel Huntington warned that in the eyes of most of the world, the US is "becoming the rogue superpower", considered "the single greatest external threat to their societies". Realist "international relations theory", he argues, predicts that coalitions may arise to counterbalance the rogue superpower. On pragmatic grounds, then, the stance should be reconsidered.
Americans who prefer a different image of their society might call for a reconsideration on other than pragmatic grounds. In Kosovo, the US has chosen a course of action which escalates atrocities and violence — "predictably"; a course of action that also strikes yet another blow against the regime of international order which does offer the weak at least some limited protection from predatory states.
As for the longer term, one plausible observation is 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).
A standard argument is that we had to do something: we could not simply stand by as atrocities continue. That is never true. One choice, always, is to follow the Hippocratic principle: "First, do no harm". If you can think of no way to adhere to that, then do nothing. Diplomacy and negotiations are never at an end.
The right of "humanitarian intervention" is likely to be more frequently invoked in coming years — maybe with justification, maybe not — now that Cold War pretexts have lost their efficacy.
Respected international affairs scholar Leon Henkin writes that the "pressures eroding the prohibition on the use of force are deplorable, and the arguments to legitimise the use of force in those circumstances are unpersuasive and dangerous ... 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 principle advance in international law, the outlawing of war and the prohibition of force."
Recognised principles of international law and world order, solemn treaty obligations, decisions by the World Court, considered pronouncements by the most respected commentators — these do not automatically solve particular problems. Each issue has to be considered on its merits.
There is a heavy burden of proof to meet in undertaking the threat or use of force in violation of the principles of international order. Perhaps the burden can be met, but that has to be shown, not merely proclaimed with passionate rhetoric. The consequences of such violations have to be assessed carefully — in particular what we understand to be "predictable". And the reasons for the actions also have to be assessed.
[Abridged from an article originally posted on March 27 on Znet.]