US, Russia to Begin Ukraine Talks as Tensions Decrease at Border, Analyst Says

ASSOCIATED PRESS | Foxnews

A leading Ukrainian military analyst says there are now about 50,000 Russian troops within several hours of the two nations’ border, but there has been a “general decrease in tensions” since Russian President Vladimir Putin called President Obama on Friday.

Of the 50,000 troops, about 10,000 are located directly at the border, but Dmitry Tymchuk told Fox News on Sunday he has seen some “pull-back and regrouping” of these soldiers, lessening the immediate chances of a full-scale Russian invasion.

Meanwhile, Secretary of State John Kerry was scheduled to open talks on Sunday with his Russian counterpart, Foreign Minister Sergey Lavrov, in Paris as part of the latest attempt by Washington to defuse an ongoing conflict with Moscow over future of Ukraine.

Kerry arrived in Paris from a refueling stop in Shannon, Ireland. He had been on his way to Washington from Riyadh, Saudi Arabia when he decided to travel to Paris for the talks.

Putin proposed the meeting between the top diplomats in the surprise phone call with Obama, which occurred while the latter was traveling in Saudi Arabia.

The Wall Street Journal reported Sunday that U.S. officials have been divided over whether Putin’s call was indicative of a genuine desire to ease tensions between East and West or a pretext for further military action in Eastern Europe.

White House officials described the call as “frank and direct” and said Obama had urged Putin to offer a written response to a diplomatic resolution to the Ukraine crisis that the U.S. has presented. Obama also urged Moscow to scale back its troop build-up on the border with Ukraine, which has prompted concerns in Kiev and Washington about a possible Russian invasion in eastern Ukraine.

The Kremlin, on the other hand, said Putin had drawn Obama’s attention to a “rampage of extremists” in Ukraine and suggested “possible steps by the international community to help stabilize the situation” in Ukraine.

Kerry has repeatedly met with Lavrov over the past month in attempts to halt Russia’s annexation of Crimea. However, those talks have proven fruitless, and U.S. officials tell the Journal that Putin is likely to demand that the U.S. accept Russia’s annexation of the Black Sea peninsula earlier this month as the minimum necessary for any cooperation between the two nations.

In previous meetings, Mr. Kerry has outlined to Mr. Lavrov a common approach to resolving the Ukraine crisis, U.S. officials told the Journal. This included joint initiatives to stabilize Kiev’s economy, promote the decentralization of the country’s political system and demobilize pro-Russian and pro-Ukrainian paramilitaries that have blossomed across the country in recent months. However, those proposed initiatives have been contingent on the unlikely event of Russia pulling back from Crimea.

Read the complete article at Foxnews

Three Steps to Stop Putin . . . Before It Is Too Late

John R. Bolton |  Liberal

There is no doubt Russia’s behavior has grown increasingly troublesome for some time.
In little more than a week, citizens of the United States will vote to elect the next President. Although many in Europe focus intently on the election’s significance for U.S. foreign policy, the ongoing global financial crisis has largely dominated the campaign and voters’ attention. Accordingly, there is much about the two major-party candidates’ views on foreign policy that have not been fully articulated. We know, or can infer with confidence, the most about Senator McCain’s likely national security policies because of his long and distinguished career in the U.S. Senate. Senator Obama, by contrast, has very limited experience in foreign policy. His campaign has prudently limited his potential exposure on the issue to broad generalities, concentrating on tying McCain to the unpopular Bush Administration by suggesting that a McCain presidency will simply be a “third term” for Bush.While it is perfectly understandable that the economy has been uppermost on the minds of the voters, in Europe as well as America, we cannot escape the international challenges that the next President will face. Of these, the challenge which Europe and America face most acutely together is understanding and dealing with the direction of Russia’s foreign policy, especially as it affects Europe and its other neighbors. Although no serious observer thinks we face a new Cold War, or that isolating Russia because of its increasing foreign adventurism is a real solution, there is no doubt Russia’s behavior has grown increasingly troublesome and even belligerent for some time.

Facts are facts. Russia’s invasion of Georgia is only the most recent and most vicious indicator of its return not to the Cold War but to a thuggish, indeed czarist, approach to its former dominions. Then-President Vladimir Putin gave early warning in 2005, saying that the Soviet Union’s breakup was “the greatest geopolitical catastrophe of the Twentieth Century.” In the same speech, Putin lamented that “tens of millions of our fellow citizens and countrymen found themselves beyond the fringes of Russian territory.” Today, as Russia’s Prime Minister, Putin may be acting to reverse that “catastrophe,” as further demonstrated by Moscow’s unabashed embrace of Yulia Tymoshenko and innumerable other efforts to interfere in Ukrainian elections. Prudence based on history requires us to assess Russia’s invasion of Georgia as more than an aberration, until proven otherwise.

Russia has repeatedly demonstrated its intention and capacity to threaten America’s and Europe’s interests: providing cover to Iran’s nuclear weapons program by enthusiastically neutering sanctions resolutions in the UN Security Council and trying to market reactors to Tehran; selling high-end conventional weapons to Iran, Syria and other undesirables; using Russia’s oil and natural gas assets to intimidate Europe; making overtures to OPEC; and cozying up to Venezuela through joint Caribbean naval maneuvers, weapons sales, and even agreeing to construct nuclear reactors, a truly dangerous sign.

Take the controversy over locating U.S. missile defense assets in Poland and the Czech Republic. We fully informed Russia before withdrawing from the 1972 ABM Treaty that we would create a limited missile defense system, i.e., geographically national, but limited to protect only against the handfuls of missiles states like North Korea and Iran might launch. As anyone can tell from a globe, anti-missile sites in Europe won’t defend against the missile trajectories of a Russian strike against America. (That’s why the DEW Line was in Alaska and Canada, not Europe.) Russia’s threat to attack Poland is aimed at intimidating Western Europe, an all too-easy objective these days.

Western  opposition to Russia’s recent aggressive behavior should not rest on a desire to “punish” Russia, but on the critical need to brace Moscow before its behavior becomes even more unacceptable. Europe and the United States  have real interests at stake, such as a route to the Caspian Basin’s oil and gas assets that does not traverse Russia or Iran. Even as global oil prices have fallen, the need for energy independence from potential adversaries remains compelling. If Moscow’s marching through Georgia goes unopposed, marching will look more attractive elsewhere, starting with Ukraine with its large ethnic Russian population “beyond the fringes” of Moscow’s control. “Legitimate security interests” do not justify invading and dismembering bordering countries.

A truly rational Russia policy has to escape both the persistent romanticism of Moscow in recent U.S. Administrations, and the desire of some Europeans to pull the covers over their heads and hope that things will work out by doing nothing. Too many Europeans believe they have passed beyond history, and beyond external threats unless they themselves are “provocative.” Last spring in Bucharest, that mentality led Germany and others to reject U.S. suggestions to put Georgia and Ukraine formally on the path to NATO membership. Moscow clearly read that rejection as a sign of weakness.

In truth, what most risks “provoking” Moscow is not Western resolve, but precisely Western weakness. This is where the real weight of history lies. Accordingly, attitude adjustment in Moscow first requires attitude adjustment in NATO capitals, and quickly, before Moscow’s swaggering leaders draw the wrong lessons from their recent successes.

First, NATO must reverse the Bucharest Summit mistake immediately, and this is an achievable goal before President Bush leaves office. Admitting Estonia, Latvia and Lithuania has in fact stabilized a possible zone of confrontation in the Baltic, and moving to bring in Ukraine and Georgia will eliminate another dangerous vacuum in the Black Sea region. Second, we should scale up rapidly in military cooperation with current and aspiring NATO members in Central and Eastern Europe to make it clear more Russian adventurism is highly inadvisable. Hopefully, other NATO countries will join with the United States, but Washington should act bilaterally if need be. Third, the United States and Europe should proceed full speed ahead with missile defense plans, on which we have repeatedly offered Russia full involvement and cooperation, to protect us all from rogue state threats.

Such an approach will not endanger Western security, but enhance it. And if Russia takes offense, better to know it now than later, when the stakes for all concerned may be much higher.

The United Nations and Kosovo’s Independence

John R. Bolton |  The San Diego Union-Tribune

The separation of Kosovo is threatening to the Balkans and may divide Russia from the West.

Kosovo’s unilateral declaration of independence creates an extraordinary risk of instability in the Balkans. It has immediately exacerbated ethnic tensions, invited further border alterations along ethnic or religious lines, provided a potentially inviting base of operations for radical Islamists from outside Europe and has expanded the growing range of issues once again threatening to divide Russia from the West. 

However, one issue that has received only peripheral attention is the hypocrisy of those European Union members that have recognized Kosovo’s declaration despite the lack of authorization by the United Nations Security Council. Indeed, the declaration is not only unauthorized, but flatly contrary to the controlling U.N. authority on the subject, Security Council Resolution 1244 of 1999. That resolution states explicitly that the United Nations is “Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act. . . .”

While Resolution 1244 undoubtedly contemplates that Kosovo’s status could change, its sponsors intended for that to occur under Security Council auspices, which it did not. Given the near-certainty of a Russian (and perhaps a Chinese) veto if anyone proposed a draft resolution to do so, it will not happen, now or well into the future. Effectively, therefore, the Security Council, having once defined Kosovo’s status, now lacks the ability to change it. 

Serbia, Russia and some European governments have complained, but their protests have been swept aside. Serbia and Russia argue that splitting apart a U.N. member government without its consent will set a precedent for future such actions under “international law,” which neither they nor many other governments would like to see. At a minimum, they argue, by acting outside the Security Council, and in fact in violation of a valid council resolution, those states recognizing Kosovo’s independence and sovereignty are weakening the council and the U.N. generally.

For the United States, acting outside the Security Council is nothing new. Indeed, NATO conducted its 1999 military campaign against Serbia, and that led ultimately to Resolution 1244, without Security Council authorization. At that time, Europe’s NATO members fully approved the decision to bomb Serbia into submission, conveniently ignoring the absence of Security Council action. U.N. Secretary General Kofi Annan, however, roundly criticized the decision, saying, “Unless the Security Council is restored to its pre-eminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy.” Annan later said actions such as NATO’s constituted threats to the “very core of the international security system. . . . Only the Charter provides a universally legal basis for the use of force.”

The real issue, however, is the contrast between what has just been done regarding Kosovo’s declaration, and the extensive criticism in Europe for the United States decision to overthrow the Iraqi regime of Saddam Hussein in 2003. Although many European governments, including the Italian government of then-Prime Minister Silvio Berlusconi, supported the international coalition that eliminated Saddam’s threat to international peace and security, many others, notably Russia, France and Germany, vigorously opposed the operation. They argued vociferously that the absence of an express Security Council resolution authorizing the use of force to overthrow the Iraqi regime meant that the U.S.-led military action was illegitimate.

The United States, by contrast, contended that the coalition’s military campaign was fully legitimate for many reasons, at a minimum because Saddam’s repeated violations of the 1991 cease-fire provisions embodied in Resolution 687 authorized the resumption of military hostilities. Faced with the likelihood of a French veto (and possibly also Russian and Chinese vetoes) over Iraq, the United States relied on the implicit authority of Resolution 687, and on its inherent right to individual and collective self-defense, guaranteed by Article 51 of the U.N. Charter.

However one views the U.S.-led overthrow of Saddam, or NATO’s 1999 air campaign against Serbia, or the current recognition of Kosovo’s unilateral declaration (including by the current government of Italy), one theme ties all three of these decisions together. All were taken without express Security Council authorization. Indeed, as explained above, recognition of Kosovo’s declaration is “worse” from that perspective, since recognition effectively violates Resolution 1244’s reaffirmation of Serbian sovereignty over the territory.

This commonality is significant not, as Serbia and Russia assert, namely that recognizing Kosovo violates “international law.” Instead, what is really significant is the unwillingness of many in Europe to appreciate that what they are doing in Kosovo today (and did in the 1999 air war) is precisely what they roundly criticized the United States for doing in Iraq in 2003.

Criticizing American policy in Iraq may reflect a legitimate difference in policy. What is not legitimate is to criticize the lack of Security Council authorization for overthrowing Saddam, unless those Europeans are willing to concede that in Kosovo, Europe is simply following in America’s footsteps.

In short, the question of Kosovo, today as in 1999, cannot be resolved satisfactorily to major European powers by Security Council decisions. While I personally disagree with recognizing Kosovo at the present time because of its risks for stability in the Balkans, I do not question the propriety of EU members so acting. It is neither surprising nor illegitimate that, in light of the existing political reality, European countries did what they needed to do outside of the Security Council. All that I and many other Americans ask is that, in the future, Europeans not criticize the United States when we do exactly the same thing.

Warning Light on Kosovo

John R. Bolton, Lawrence Eagleburger, Peter W. Rodman | Washington Times

An imposed settlement of the Kosovo question and the partitioning of Serbia’s sovereign territory without its consent is not in the interest of the United States.
The Bush administration has indicated its readiness to recognize a unilateral declaration of independence by ethnic Albanians in Kosovo, a province of the Republic of Serbia that since 1999 has been under United Nations administration and NATO military control.Such a declaration may take place as early as February. American recognition would be over Serbia’s objections, without a negotiated solution between Serbia and Kosovo’s Albanians, and without modification by the United Nations Security Council of Resolution 1244, which reaffirms Serbian sovereignty in Kosovo while providing for the province’s “substantial autonomy.” U.S. recognition may be joined by that of some members of the European Union, which has been under heavy diplomatic pressure from Washington, though several EU states and a number of countries outside Europe have said they would reject such action.

Attempting to impose a settlement on Serbia would be a direct challenge to the Russian Federation, which opposes any Kosovo settlement not accepted by Belgrade.

We believe an imposed settlement of the Kosovo question and seeking to partition Serbia’s sovereign territory without its consent is not in the interest of the United States. The blithe assumption of American policy–that the mere passage of nine years of relative quiet would be enough to lull Serbia and Russia into reversing their positions on a conflict that goes back centuries–has proven to be naive in the extreme.

We believe U.S. policy on Kosovo must be re-examined without delay, and we urge the Bush administration to make it clear that pending the results of such re-examination it would withhold recognition of a Kosovo independence declaration and discourage Kosovo’s Albanians from taking that step.

Current U.S. policy relies on the unconvincing claim that Kosovo is “unique” and would set no precedent for other troublespots. Of course every conflict has unique characteristics. However, ethnic and religious minorities in other countries already are signaling their intention to follow a Kosovo example. This includes sizeable Albanian communities in adjoining areas of southern Serbia, Montenegro, and especially the Former Yugoslav Republic of Macedonia, as well as the Serbian portion of Bosnia-Herzegovina.

Recognition of Kosovo’s independence without Serbia’s consent would set a precedent with far-reaching and unpredictable consequences for many other regions of the world. The Kosovo model already has been cited by supporters of the Basque separatist movement in Spain and the Turkish-controlled area of northern Cyprus. Neither the Security Council nor any other international body has the power or authority to impose a change of any country’s borders.

Perhaps the most troubling aspect of the current policy is the dismissive attitude displayed toward Russia’s objections. Whatever disagreements the United States may have with Moscow on other issues, and there are many, the United States should not prompt an unnecessary crisis in U.S.-Russia relations. There are urgent matters regarding which the United States must work with Russia, including Iran’s nuclear intentions and North Korea’s nuclear capability. Such cooperation would be undercut by American action to neutralize Moscow’s legitimate concerns regarding Kosovo.

If the U.S. moves forward with recognizing Kosovo, Moscow’s passivity cannot be taken for granted. It may have been one thing in 1999 for the United States and NATO to take action against Yugoslavia over the objections of a weak Russia.

Today, it would be unwise to dismiss Russia’s willingness and ability to assist Serbia. On an issue of minor importance to the United States, is this a useful expenditure of significant political capital with Russia?

Our Kosovo policy is hardly less problematic for our friends and allies in Europe. While some European countries, notably members of the EU, may feel themselves obligated to join us in recognizing Kosovo’s independence, a number of those countries would do so reluctantly because of Washington’s inflexibility and insistence. No more than the United States, Europe would not benefit from an avoidable confrontation with Russia.

Even if Kosovo declared itself an independent state, it would be a dysfunctional one and a ward of the international community for the indefinite future. Corruption and organized crime are rampant. The economy, aside from international largesse and criminal activities, is nonviable. Law enforcement, integrity of the courts, protection of persons and property, and other prerequisites for statehood are practically nonexistent. While these failures are often blamed on Kosovo’s uncertain status, a unilateral declaration of independence recognized by some countries and rejected by many others would hardly remedy that fact.

The result would be a new “frozen conflict,” with Kosovo’s status still unresolved. The risk of renewed violence would further impede Kosovo’s development. Moreover, heightened tensions might require reinforcing the U.S. presence in Kosovo when we can least afford it due to other commitments.

Serbia has made great strides in democratic development and economic revitalization since the fall of the regime of Slobodan Milosevic. Current policy with respect to Kosovo risks complete reversal of these gains. Faced with a choice between Western partnership and defense of their sovereign territory and constitution, there is little doubt what Serbia would decide.

The current positive trend could falter in the face of political radicalization and possible internal destabilization. Serbia’s relations with countries that had recognized Kosovo would be impaired. Serbia would inevitably move closer to Russia as its only protector.

We do not underestimate the difficulty and complexity of the Kosovo question nor do we suggest the status quo can endure indefinitely. As with thorny questions elsewhere, viable and enduring settlements should result from negotiation and compromise. Such an outcome has been undermined by a U.S. promise to the Kosovo Albanians that their demands will be satisfied if they remain adamant and no agreement is reached with Belgrade. Such a promise cannot be justified by the claim, often heard from proponents of independence, that the Albanians’ “patience” is running out, so independence must be granted without delay. This is nothing less than appeasing a threat of violence.

A reassessment of America’s Kosovo policy is long overdue. We hope a policy that would set a very dangerous international precedent can still be averted if that reassessment begins now. In the meantime, it is imperative that no unwarranted or hasty action be taken that would turn what is now a relatively small problem into a large one.

United States Policy on United Nations Peacekeeping

By John R. Bolton

Case Studies in the Congo, Sierra Leone, Ethiopia-Eritrea, Kosovo and East Timor
The UN is involved in conflicts, or is considering involvement, where it has neither the authority nor the competence to be effective, and its instinctive reaction to difficulties it has encountered has been simply to do more of the same.

Mr. Chairman and Members of the Committee, I wish to thank you for inviting me to testify before you this morning on United States policy toward United Nations peacekeeping operations, and how decision making by the present Administration conforms to its own announced standards in several specific contexts.  I have a prepared statement that I ask be included in the record, and that I will summarize, and I would then be pleased to answer any questions the Committee might have.

I.  UN PEACEKEEPING IN THE CLINTON ADMINISTRATION
President Clinton signed Presidential Decision Directive 25 (“PDD 25”) for “U.S. Policy on Reforming Multilateral Peace Operations” on May 3, 1994.  Unclassified versions of PDD 25, which had been under discussion within the Administration from its outset, were released subsequently.[1]  I understand that the General Accounting Office has conducted an evaluation of the Administration’s compliance with PDD as written, and I will not attempt to duplicate that here.  Instead, I will examine briefly some of the flaws inherent in PDD-25 as written, and as are currently being demonstrated even as we meet here this morning in a number of ongoing or contemplated UN operations.  This is obviously a complex subject, which we can analyze only summarily today, but the Committee’s continuing interest in this subject is extremely important and worthwhile.[2]

The central deficiency of PDD-25 is that it really provides no policy guidance at all.  Despite rhetorical gestures in the direction of limiting and rigorously analyzing proposed peacekeeping operations, loose language throughout the document permits justification of nearly anything the Administration ultimately decides to do.  As a former official in the Executive Branch, I strongly support flexibility in Presidential decision-making, but I also believe that when the President purports to announce a policy decision, it should be a real decision, and he should mean it.  I do not believe that PDD-25 meets these minimal standards.

The White House press announcement on PDD 25 says that “peace operations can be a useful element in serving America’s interests,” and that PDD-25 is intended “to ensure that use of such operations is selective and more effective.”[3]  President Clinton and other Administration officials have made similar remarks about “selectivity” on several occasions.  For example, the President said to the UN General Assembly in September, 1999:  “I know that some are troubled that the United States and others cannot respond to every humanitarian catastrophe in the world.  We cannot do everything everywhere.”  Just before her trip to Sierra Leone in October, 1999, Secretary of State Albright said:  “We have to resist the temptation to use our forces in every dispute that catches our eye or our emotions.”[4]

The State Department version of PDD-25 seems to track these objectives when it says that “peacekeeping can be one useful tool to help prevent and resolve [regional] conflicts before they pose direct threats to our national security.”[5]  However, it then immediately adds that “peacekeeping can also serve U.S. interests by promoting democracy, regional security and economic growth.”  This is the critical sentence that has, in the actual unfolding of Administration policy, made the rest of PDD-25 essentially superfluous.  The real issue for top decision-makers is not what a proposed policy might do, but what it will do in concrete cases presented to them for resolution.  By turning from “direct threats to national security” to generalities and abstractions, however desirable they are, PDD-25 deserts the world of policymaking for the world of philosophy.  While of philosophical interest, at least for some, it should come as no surprise that PDD-25 seems to be typically ignored by those whose decisions it purportedly constrains and directs.

Specifically, there are two important ways in which PDD-25, at its very outset, confuses or obscures political-military realities, obliterating distinctions that should be important in formulating American policy.  First, it says that “[f]or simplicity, the term peace operations is used in this document to cover the entire spectrum of activities from traditional peacekeeping to peace enforcement aimed at defusing and resolving international conflicts.”[6]  While simplicity is generally commendable, it can be affirmatively dangerous when it conceals important differences among fundamentally divergent alternatives.  “Peacekeeping” has been traditionally understood in the UN context to mean the deployment of UN “blue helmets” subject to three preconditions:  (a)  consent among the parties to the dispute;  (b) neutrality of the UN forces deployed; and (c) the use of force by UN personnel essentially only for self-defense.  By contrast, “peace enforcement,” a relatively new term, means the UN’s willingness and the ability to use force to achieve its objectives.  The best synonyms for “peace enforcement” are words like “war” and “combat,” which probably explains why they are not favored at the United Nations.  (Some have gone so far, for example, as to characterize “Desert Storm” as a “peace enforcement” action.)

The UN’s actual roles in “peacekeeping” and “peace enforcement,” however, could not be more widely divergent, a divergence utterly lost by PDD-25’s reference to a  “spectrum of activities,” as if they all fit together seamlessly.  Slurring these two concepts together under the term “peace operations” thus virtually guarantees that proposed missions for the United Nations will be confused and misunderstood, and, therefore, that their goals will be unclear, resources inadequate or misallocated, and end-points indeterminate.  This confusion has been graphically demonstrated by failed UN efforts in Somalia and Bosnia, where attempts to shift UN missions from “peacekeeping” to “peace enforcement”  (and back again) resulted in tragedy for the United States in Somalia, and humiliation for the United Nations in Bosnia.  As will be described more fully below, this confusion continues to haunt both the UN and the United States in several current crises.

Second, PDD-25 states that “[t]erritorial disputes, armed ethnic conflicts, civil wars (many of which could spill across international borders) and the collapse of governmental authority in some states are among the current threats to peace.”[7]  Critically absent here, however, is any reference to the UN Charter’s triggering threshold for jurisdiction by the Security Council, which is “the maintenance of international peace and security.”[8]  This omission is not accidental, since even PDD-25’s language about civil wars expressly concedes the possible absence of a true international threat, and the other categories (apart from territorial disputes) implicitly contemplate entirely intra-state disputes.  This essentially open-ended expansion of the Security Council’s role eviscerates the Charter’s limitations, making it impossible in principle to explain why the Council should not be involved in virtually every case of armed conflict around the globe.  Accordingly, this is not simply a technical issue of breaching a jurisdictional limit, but a fundamental policy shift, even if little noticed in media reporting.

Moreover, the change from basically international to basically intra-state conflicts involves more than simply a matter of degree.  PDD-25 itself admits this when it refers to American support for “peace operations . . . as a tool” to allow “failed societies to begin to reconstitute themselves.”[9]  While PDD-25 does not elaborate on what “reconstituting failed societies” might entail, a subsequent presidential decision, PDD-56 (“Managing Complex Contingency Operations”) lists at least some of them:

“political mediation/reconciliation, military support, demobilization, humanitarian assistance, police reform, basic public services, economic restoration, human rights monitoring, social reconciliation, public information, etc.”[10]
The breadth of this list sounds much like the requirements for an exercise in “nation building,” the vaulting phrase used by the Clinton Administration in 1993 to describe its policies in Somalia.

Rather than simply assessing PDD-25 in the abstract, however, it is far more instructive to examine current and proposed UN involvement in several ongoing crises.  So doing demonstrates that, after a hiatus in the middle of President Clinton’s tenure, United Nations “peace operations” (however defined) are indeed back in the forefront of Administration policy, unconstrained either by PDD-25 or sound policy analysis.  This policy shift also has obvious budget implications for the United States, and GAO now estimates that total peacekeeping costs in 2001 will be approximately $ 2.67 billion, some $ 600 million more than current projected peacekeeping expenditures.[11]  To consider the specific implications of the Administration’s renewed emphasis on UN peacekeeping, we turn, therefore, to several contemporary case studies.

II.  UN PEACEKEEPING:  THREE CASE STUDIES IN AFRICA

The United States now confronts many diverse conflicts in Africa, three of which are considered here.  In all three, the Clinton Administration has vigorously advocated “peacekeeping” operations, which ffigured prominently during the U.S. presidency of the Security Council in January, 2000, the “month of Africa” as it was billed.  Yet, as even a brief comparison of the three  —  the prolonged conflict in the Democratic Republic of Congo (“DRC”), the civil war in Sierra Leone, and the war between Ethiopia and Eritrea  —  shows how different the political and military conditions are, and how poorly an overly-enthusiastic “one size fits all” approach to peacekeeping works in the real world.

In the DRC, a multiparty conflict is far from even temporary political resolution, and accordingly there is no warrant whatever to deploy a UN peacekeeping force.  In Sierra Leone, there is no discernable threat to international peace and security, and hence no jurisdiction of the Security Council to intervene;  indeed, the history of the UN operation there to date graphically demonstrates the inadequacy of the politico-military rational for deployment.  In the Ethiopia-Eritrea conflict, where there is a clear threat to international peace and security and where UN observers could play an important role in implementing a cease fire between the parties, the ambitions by the UN Secretariat for a larger political role, and the unsupported devotion to abstract, theoretical notions about such a role, have led the UN to propose a force structure and size (and hence cost and risk) well beyond anything reasonably necessary to accomplish its objectives.

Earlier this year, a journalist observed that:

“Sierra Leone’s conflict, though unusually cruel, was simple — essentially a fight over power between a government and a rebellion.  Congo by contrast, is caught up in a bewilderingly complex war involving six nations, three rebel groups and several militias, each fighting for different reasons in a country the size of Western Europe. The United Nations peacekeeping force in Sierra Leone is expected to reach 11,000;  a force in Congo, to be effective, would have to number in the tens of thousands, rather than the 5,000 the United Nations is preparing to send.”[12]
This contrast highlights some, but by no means all, of the differences between the Congo and Sierra Leone, and yet even in the “simple” case of Sierra Leone, the United Nations is failing badly;  the prospects in the DRC are hardly any brighter.   Combined with the prospect of a misconceived force between Ethiopia and Eritrea, the prognosis for the UN in Africa is not good, as we consider below.

DEMOCRATIC REPUBLIC OF THE CONGO

Since the fall from power of former Zairian President Mobutu Sese Seko in mid-May, 1997, if not before, there have been no effective governmental structures in much of the eastern Democratic Republic of the Congo “(DRC”).  Indeed, the speed with which rebels under Laurent Kabila defeated Mobutu’s armed forces  —  just over six months from when the rebels captured Goma on the eastern border until Mobutu fled from Kinshasa  —  shows how unstable and close to disintegration the country already was.  Moreover, the importance of outside assistance to Kabila (notably, at the outset, from Rwanda’s Tutsi government, and from Angola and Uganda),[13] further demonstrated the complex political currents at work throughout the Great Lakes region.  Although Kabila’s home region was Lubumbashi in Shaba (formerly Katanga) Province, his first victories in 1996-97 came in North and South Kivu Provinces, aided by Banyamulenge/Tutsi forces.

Kabila’s own antiquated Marxist notions (he began as a supporter of Patrice Lumumba) and his variegated political support guaranteed virtually from the outset that dealings with him would be highly uncertain.  During his rebel years in Eastern Zaire, one writer described him as “a typical African warlord.”[14]  Just before his troops drove Mobutu out of the country, Kabila, who routinely described Mobutu as “the devil,” announced:  “I will only say I am a symbol of the resistance of my people against the foreign domination of this country.  Our message is very clear.  We want to rid the country of the old regime and poverty.”[15]  This comment might well have applied as well to the several hundred thousand (perhaps up to one million) Rwandan Hutu refugees who fled into Zaire after the collapse of the extremist government responsible for exterminating hundreds of thousands of Tutsis in 1994.  The success of Kabila’s rebels resulted in many of these Hutus fleeing back into Rwanda, but also allegations of brutal retaliation against them.  Shortly after gaining power, Kabila repeatedly obstructed international efforts to investigate allegations about massacres and other atrocities.[16]

Significantly, many familiar with the region immediately saw France, a Permanent Member of the Security Council, as the biggest outside “loser” in Mobutu’s collapse.  Journalists explained that:

“the dictator regained Paris’s favor in 1994 when he allowed French troops to use bases in Zaire for their operation to stop revenge massacres of Hutus in Rwanda following the genocide of Tutsis and moderate Hutus.  Some believe that France’s unwavering support of the deposed dictator in the current crisis persuaded him he could survive and kept him hanging on when it was clear to the rest of the world he would have to go.”[17]

One unidentified diplomat reportedly said “The French resisted to the very last.  Their policy seems to have been frozen in time.”[18]

Although the United States pressed Kabila on the war crimes allegations,[19] Secretary of State Albright, in a December, 1997 visit, said that “President Kabila has made a strong start toward [the] goals” of “commitment to open markets, honest government and the rule of law.”[20]  Even so, just fourteen months after Kabila came to power, many of his original Tutsi supporters revolted against him with assistance from Rwanda (and later Burundi and Uganda).[21]  Kabila sought support from other African states such as Angola, Zimbabwe and Namibia, as well as from Hutu Interahamwe fighters still in Congo, and in effect a new regional war broke out.[22]  Negotiations to resolve the conflict began in September, 1998, and interspersed with renewed outbreaks of fighting and allegations of atrocities,[23] lasted until several national leaders signed a July, 1999, agreement in Lusaka, Zambia.  Unfortunately, none of the rebel factions (often excluded from the ongoing negotiations[24]) initially agreed to the deal.[25]  Moreover, even after the rebels signed on, all sides have routinely ignored the promised cease-fire.[26]

The Congo is unquestionably a conflict that crosses national borders and, in the UN Charter’s words, “endangers the maintenance of international peace and security.”  Thus, Security Council involvement is legitimate, and may ultimately prove helpful through diplomatic efforts.  Unfortunately, however, pushed by certain of the African leaders, and pulled by their own confusion about workable UN peacekeeping, Council members may have made a bad situation worse.  They adopted, on February 24, 2000, a resolution authorizing a UN peacekeeping force of approximately 5,500 troops, which could cost up to $ 500 million in its first year of actual operations (the United Nations Organization Mission in the Democratic Republic of the Congo, or “MONUC”).[27]

The Council’s plan, however, promptly ran into political opposition from Kabila,[28] and was put on hold indefinitely, despite active diplomacy by the Clinton Administration.[29]  As recently as September 21, Secretary General Kofi Annan reported to the Security Council that it was not advisable to deploy further peacekeeping forces, and suggested the possibility of withdrawing the approximately 250 advance troops already there.  The Secretary General said that during the prior three months, “the parties continued to conduct significant military operations.  Moreover, there have been indications of intensive military preparations by the parties.”[30]  This extensive military activity is not at all surprising, given the Secretary General’s further observation that “I regret to inform the Security Council that there has been little progress, if any, in the implementation of the Lusaka Ceasefire Agreement.  The ceasefire has been consistently violated in the intensified fighting between government and rebel and UPDF forces in northern Equateur province.”[31]  The Secretary General also said expressly  —  and correctly  —  that “It is clear that United Nations peacekeeping operations cannot serve as a substitute for the political will to achieve a peaceful settlement.”[32]  The Economist, however, concluded that the peace agreement “looks fatally wounded.”[33]

By attempting to deploy a peacekeeping force prematurely into a decidedly confused and unstable military and political context, the Security Council could well impede its ability to act effectively down the road.  As in cases like Cyprus, the UN presence may simply freeze existing divisions and actually ossify political negotiations.

And that would be the good news.  The other possibility is that by deploying lightly-armed observers into the eastern Congo, the Security Council risks making them hostage to the warring parties, or even becoming combatants themselves (as happened in Somalia and Bosnia).  A really muscular force that could impose peace is not on the table, nor should it be in this multi-sided, highly ambiguous context, where what appear to be innocent civilians in need of protection at one point become marauding guerrillas the next.  Inserting UN troops before the parties are truly reconciled, at least in the short term, is never a purely neutral act, as most combatants fully understand, and which the Council needs to understand as well.

Loose in the Security Council, however  —  and implicit in PDD-25  —  is the idea that “it can’t be a real conflict unless the UN has inserted a peacekeeping force.”  Secretary of Albright testified in February before this Committee that “We are asking for a peacekeeping operation there [in Congo].  We believe that it’s essential that we support that, because Congo is not only large, but it’s surrounded by nine countries.”[34]  Secretary Albright’s statement is, at best, exactly backwards.  First must come the essential political meeting of the minds of the parties to the conflict, then, and only then should there be consideration of instrumentalities, such as a UN peacekeeping force, to implement the agreement.  Today, we can see that the Lusaka Agreement is not being honored even by the states and rebel forces that signed it, let alone those that did not.  Indeed, Secretary General Annan has pointed out that the DRC government has now “questioned the validity” of the Agreement itself, and that

“While it is up to the signatories themselves to agree to a revision of the Agreement, it should be recalled that the Agreement is the basis of all relevant Security Council resolutions authorizing the presence of MONUC in the Democratic Republic of the Congo.  Clarity on this fundamental issue would be indispensable for any decision on the future deployment of United Nations troops.”[35]
Although proponents of a UN force scaled back their initial proposals to a 5,500-person observation force, their stated expectation remains that this deployment is just the precursor to a much larger force, of 15,000 or more.

Thus, the underlying Lusaka Agreement on which the Security Council  —  and, presumably, United States  —  policy has been relying is in question, actual implementation of the Agreement has been minimal, and the military situation in the DRC has been worsening and seems likely to get worse.  There is simply no basis here, under PDD 25 or any other conceivably coherent American peacekeeping policy, to support the further deployment of UN forces into the region.

SIERRA LEONE

Political instability, military conflict and civil strife are, sad to say, nothing new to Sierra Leone.  For example, following a coup in April, 1992, which he called a “people’s revolution,” Valentine Strasser, an infantry captain fighting against rebel forces, and dissatisfied at not receiving regular pay and benefits, overthrew then-President (and former Major General) Joseph Momoh, who had been installed by the previous ruler, who had himself taken power in a coup.  Although Momoh proposed to return to democracy, he faced rebellion by the Revolutionary United Front (“RUF”), founded by another disgruntled army man, Foday Sankoh, who has been described as “a populist former army corporal who led a . . . bush war with a force of marginalized rural youths.”[36]  The National Democratic Institute recently characterized the RUF “as a rebellion against the years of an authoritarian, one-party state that had sunk the country into poverty and corruption,” and that Sankoh “promised free education, and medical care, an end to corruption, nepotism and tribalism.”[37]

Strasser became Chairman of the Supreme Council of State after his coup, and continued the conflict against the RUF.  Amnesty International said that Strasser’s troops committed “torture, ill-treatment and arbitrary killings of unarmed civilians,” including the execution by firing squad of 26 (or 29, reports differ) political opponents without trial eight months after seizing power.  Amnesty also reportedly said that:  “Strasser’s men attacked several villages, and, in the guise of rebel forces, lopped off the hands and feet of civilians while using others for bayonet practice.”[38]  Strasser was overthrown in January, 1996, and was succeeded by Ahmed Tejan Kabbah, Sierra Leone’s first democratically elected President.

Yet another disgruntled group of soldiers, led by Major Johnny Paul Koroma, overthrew Kabbah in late May, 1997, and the RUF this time joined forces with the military junta.[39]  On October 8, the Security Council unanimously adopted Resolution 1132, imposing economic sanctions against the junta, including a general arms embargo, and Koromo agreed to allow Kabbah to return to power by April, 1998.  When Koromo appeared to be reneging on the agreement, Kabbah, with considerable help from Nigerian-led ECOMOG (“Economic Community of West African States’ Monitoring Observer Group”) forces, as well as a British mercenary company, Sandline International launched an offensive in early February.[40]  The ECOMOG intervention encountered substantial difficulties, however, and several of its initial forays were routed by the junta and the RUF;  the situation was sufficiently dangerous that American Marines were required to evacuate over 1,200 foreigners in early June.[41]  Moreover, Kabbah’s restoration came “partly at the hands of a rural militia made up mainly of Mende tribal hunters called kamajors.  While Nigerian troops seized Freetown, the kamajors swept across much of the countryside.  They are a decentralized, ill-disciplined force that Kabbah’s government  —  and reportedly, Nigeria  —  armed with more and heavier weapons than they have ever had.”[42]

Following Kabbah’s return to power, Sankoh remained under arrest in Nigeria (where he had been held for arms smuggling and for supporting the junta), and the RUF resumed its rebel activities.  Although the Kabbah government granted amnesty to the former junta’s soldiers, Sankoh was sentenced to death for his role in the coup (stayed pending his appeal).[43]  Nigerian forces remained in Sierra Leone to assist Kabbah, and by early January, 1999, had up to 20,000 troops there, nearly one quarter of the entire Nigerian army.[44]  Nonetheless, in January the RUF almost captured the capital, Freetown, causing the UN Observer Mission in Sierra Leone (“UNOMSIL”) to evacuate its foreign personnel.  Sankoh was flown to Guinea for talks with ECOMOG representatives.[45]  Both Sankoh’s troops and the ECOMOG forces reportedly engaged in atrocities:

“A United Nations human rights mission has charged that regional peacekeepers in Sierra Leone have summarily executed dozens of civilians.  Numerous reports of rebel violence against civilians in Sierra Leone have circulated, but in a report the mission describes systematic rights violations by both insurgents and peacekeepers. . . .  The report accuses the monitoring group established by the Economic Community of West African States, or Ecomog, of executing groups including children and some 20 patients at Connaught Hospital on Jan. 20.  The report says that Ecomog forces bombed civilian targets, shot at ‘human shields’ formed by the rebels and mistreated the staffs of the Red Cross and similar groups.”[46]
Despite this setback, the Security Council extended UNOMSIL’s mandate in Resolution 1220 (January 12), and again in Resolution 1231, endorsing the Secretary General’s desire to reestablish UNOMSIL in country, and authorizing an increase in the number of military observers from eight to fourteen.

On July 7, 1999, following two months of extensive discussions, the RUF and the Sierra Leonean government signed the Lome Peace Agreement in Togo, about which there is considerable controversy in light of subsequent developments.  The agreement provided for “the permanent cessation of hostilities”; the transformation of the RUF “into a political party and its access to public office” and the holding of elections;  “the creation of a broad-based Government of National Unity through cabinet appointments for representatives of the RUF,” including making Foday Sankoh the Vice President of Sierra Leone under President Kabbah;  a pardon for Sankoh “and a complete amnesty for any crimes committed by members of the fighting forces during the conflict from March 1991 up until the date of the signing of the agreement”;  and several other provisions pertinent to the United Nations, including the disarmament and demobilization of RUF troops, and the restriction of Sierra Leonean government forces to their barracks.[47]

Over all, the Secretary General concluded that:

“[t]he signing of the Lome Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front is a great step forward for Sierra Leone.  It provides the Sierra Leonean people a unique opportunity to bring an end to the conflict. . . ..  Both sides are to be congratulated for showing the flexibility that has made this agreement possible.”[48]
Significantly, however, he also reported to the Security Council:  “I instructed my Special representative to sign the agreement with the explicit proviso that the United Nations holds the understanding that the amnesty and pardon in article IX of the agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”[49]  He also reported that “[t]he military and security situation in Sierra Leone has improved significantly since the ceasefire agreement took place on May 24 [the day immediately before the start of the negotiations which led to the Lome Agreement on July 7] and has remained generally calm since the signing of the agreement.”[50]

Sierra Leone’s parliament ratified the Lome Agreement on July 15.[51]  On August 20, 1999, the Security Council endorsed the Lome Agreement in Resolution 1260, and authorized the expansion of UNOMSIL to 210 military observers.  Resolution 1260 contemplated that security for the UN observers would continue to be provided by ECOMOG forces still in country.  At the time, up to 12,000 Nigerian troops were still present, but the Nigerians had said they would begin withdrawing those troops rapidly.[52]  Accordingly, the Council expanded the UN role still further in October by adopting Resolution 1270, establishing a new mission (the UN Mission for Sierra Leone, or “UNAMSIL”) to help implement the Lome Agreement, including the disarmament, demobilization and reintegration of the rebel soldiers.  Up to 6,000 UN military personnel were now authorized, including 260 military observers, with Nigerian forces forming a large part of the UN contingent.[53]

The Clinton Administration fully supported both the Lome Agreement and the creation of UNAMSIL.  Secretary of State Albright visited Freetown in October during her trip to Africa.  Assistant Secretary of State for Africa Susan Rice said on October 15:

“There will never be peace and security and an opportunity for development and recovery in Sierra Leone unless there is a solution to the source of the conflict.  And that entails, by necessity  —  whether we like it or not  —  a peace agreement dealing with the rebels.”[54]
After several incidents in which UN peacekeepers were stripped of their weapons by various rebel forces, the Security Council, in Resolution 1289 (February 7, 2000), again authorized an expansion of UNAMSIL to 11,000 troops.[55]  Nonetheless, key elements of the Lome Agreement, notably provisions for disarming and demobilization, simply were not implemented, which in turn meant further delaying elections, as the Secretary General’s special representative, Oluyemi Adeniji, a Nigerian, confirmed in April.[56]

In fact, the situation got far worse.  In early May, the RUF killed seven UN peacekeepers and captured over fifty others.[57]  Those captured quickly rose to over 500, as “U.N. peacekeepers began surrendering without a fight.”[58]  Over 200 of the captured soldiers were from Zambia, and the Zambian President sharply criticized the United Nations, and, at least indirectly, the force commander, Major General Vijay Kumar Jetley of India.[59]  British forces, operating independently from UNAMSIL, then landed in Sierra Leone, ostensibly at first to help evacuate foreign nations,[60] but increasingly to help stabilize the government of Sierra Leone.[61]  With the government’s capture of Sankoh, however, and the release of some of the UN hostages, the situation began to defuse,[62] but ended only after further military action.[63]  Moreover, despite early indications that British forces would withdraw completely by mid-June, their presence continued to stretch out.[64]

As a result, implementation of key elements of the Lome Agreement essentially “came to a standstill.”[65]  The Secretary General subsequently recommended to the Security Council, in August, that UNAMSIL’s mandate be substantially modified, in effect changing from neutral peacekeeper to ally of the government of Sierra Leone.[66]  He recommended increasing UNAMSIL’s military strength to 20,500 personnel, including 18 infantry battalions,[67] although there were apparently no member states willing to provide troops under the proposed new and expanded mandate.[68]  Accordingly, the Security Council did not approve the Secretary General’s recommendations, but merely extended UNAMSIL’s mandate until September 20, 2000.[69]  While the Council still had the Secretary General’s recommendation under consideration, however, the situation was again thrown into turmoil when a dissident militia group known as the “West Side Boys” (not an element of the RUF) seized eleven British soldiers,[70] who were in turn rescued by other British forces in a surprise attack.[71]

In the midst of this ongoing crisis, a new crisis erupted in the form of a public and highly embarrassing debate among UNAMSIL’s top military leadership.  General Jetley, the force commander, had earlier endorsed a secret report highly critical of the Nigerian forces in Sierra Leone, accusing them of undermining the UN mandate and pursuing their own agenda.  In turn, Nigerian officials said that Jetley should be relieved of command, and threatened to withdraw their troops.[72]  Although disclaiming any connection with the controversy, India announced on September 20 that it was withdrawing its entire 3,000 peacekeeping troops from UNAMSIL.[73]

The apparent implosion of command-and-control within UNAMSIL, combined with concern about and lack of response to the Secretary General’s proposal to radically change the Mission’s mandate, brought the Security Council to a standstill.  Instead of approving the Secretary General’s recommendations, the Council in Resolution 1321 (September 20, 2000) has recently once again simply extended UNAMSIL’s existing mandate, this time until October 31.  There, the situation on the ground currently rests.

The meltdown of UNAMSIL is simply the latest in a long and unfortunate series of problems and errors in UN involvement in Sierra Leone.  First and foremost, of course, is the mistaken view that the civil war in that country amounted to a legitimate threat to “international peace and security” justifying Security Council involvement at all. It is not sufficient to argue that the conflict in the Sierra Leone has an international dimension, because all civil wars around the world have at least one such dimension, typically in the acquisition of arms and ammunition.  If an international “connection” is all that is required, then by definition the Security Council will be involved in every civil war.  But the Charter never contemplated such a role, and the United States should never acquiesce in such an interpretation of the Council’s function.  Sierra Leone does not cross the Charter’s jurisdictional threshold, and the Council should never have gotten involved to the extent that it has.

Second, there was never any serious review by the Security Council or the Secretariat whether the Lome Agreement represented a true meeting of the minds of the parties, and whether it provided any real basis to believe that the peacekeepers could undertake the missions contemplated for them.  This failure is a damning indictment of the Council’s entire approach to Sierra Leone, and the decision to deploy substantial UN peacekeeping forces reflects a simplistic, knee-jerk to conflict resolution.  Subsequent events demonstrate beyond question that there was never any real peace to keep, and that the peacekeepers’ mission was almost certainly doomed from the start.  The United States cannot avoid a large share of the blame for this ongoing UN failure.

Third, the UN itself likely played a major role in torpedoing the Lome Agreement.  The Secretary General’s conscious  —  indeed, proudly stated  —  decision to enter a reservation upon signing the Agreement may well have undermined its viability from the outset.  Considered simply as a political matter, Sankoh unquestionably saw the amnesty for himself and his supporters as a critically important element of Lome, for obvious reasons.  And yet, the United Nations, which would have central and continuing responsibilities under the Agreement, refused to accept this vital element.  Sankoh could certainly have concluded that there was no truly valid amnesty with the UN withholding assent from such a major component of the agreement, and, therefore, that Lome was not a valid deal at all from his perspective.

Fourth, both the Lome Agreement and its subsequent implementation were fatally defective in not dealing with the inherent problem of involving Nigerian and other ECOMOG forces.  From the public record, it seems simply to have been assumed that it was proper for Nigeria, far and away the largest country in the region, to have a major role, without considering either the Nigerian agenda or the view of Nigeria and ECOMOG within Sierra Leone, and within the Security Council.  As one journalist put it, “[d]epending upon who is speaking, that nation [Nigeria] is viewed as either the only serious force for stability or a mischievous and determined plunderer of weaker states.”[74]   In response, say some analysts, “[a]t virtually every step of the way, . . . France has maneuvered to keep the Nigerian giant in check.  The French motivation:  eagerness to retain a hold on heavily dependent former colonies.”[75]  At the time of Nigeria’s intervention to restore Kabbah, many believed it was “likely to be long and costly, . . . tying down thousands of troops for months or years in an operation undertaken largely to preserve Nigeria’s regional leadership role.”[76]  A journalist observed “[w]hile Nigeria easily outguns the junta’s forces, it could face a tough guerrilla war.”[77]  Moreover, Terry Taylor, assistant director of the International Institute for Strategic Studies said “I do not think anyone has really taken in what the Nigerians are up to.  The [diamond] mines are up for grabs, and there will certainly be some sort of deal.”[78]

Why should Nigerians have been embraced by UNAMSIL?  Given that the RUF effectively considered them the enemy, this was virtually a guarantee of a repetition of the Somalia problem, when Mohammed Farah Aideed saw the UN forces allying themselves with local clans and subclans that he considered his enemies.  Thus, the seemingly innocuous decision of Pakistani peacekeepers at the Mogadishu airport to contract for security with the Hawadle subclan was the first of many mistakes that led Aideed into bloody confrontation with the UN and the United States.  Inexplicably, the lessons of Somalia do not seem to have been applied in Sierra Leone.   Moreover, the open political disagreements between the Indian force commander and Nigerians officers under his command can only play into the hands of those wish nothing good for the UN in Sierra Leone.  This disagreement is not about technical matters, which better radios or additional training could fix, but is a fundamental political divergence that may not be reparable in a satisfactory fashion.

ETHIOPIA AND ERITREA

On September 20, I was privileged to testify before the Subcommittee on International Operations and Human Rights on UN peacekeeping, and, in that testimony, touched briefly on the situation between Ethiopia and Eritrea.  For the convenience of the full Committee, I provide below some excerpts from that testimony (with a few small changes) that are pertinent to today’s hearing:

The recent Security Council decision on a peacekeeping force in the conflict between Ethiopia and Eritrea is an excellent contemporary case study of the dangerous shift underway in UN peacekeeping policy.  The UN’s significant involvement in that conflict began when Ethiopia and Eritrea signed a cease-fire agreement on June 18, after a year of armed conflict, and a bloody struggle for Eritrean independence before that.  In Resolution 1312 (adopted on July 31, 2000), the Security Council authorized deployment of 100 military observers, which is currently underway, and also requested further planning for the UN’s role.  Secretary General Kofi Annan supplied a report on August 9, 2000,[79], recommending, inter alia, an additional 120 military observers, plus three infantry battalions, landmine clearance units and accompanying logistical support, for a total strength of 4,200 personnel. The Council authorized the additional force levels requested on September 15, in Resolution 1320, and preparations for the full deployment are substantially underway.[80]

The central philosophical and policy issue is posed by the proposal for three infantry battalions.  What exactly are they supposed to do?  Monitoring compliance with a cease-fire and the disengagement of combatant forces are tasks eminently suited to military observers, a classic peacekeeping task.  If 220 military observers are insufficient, then no one would quarrel with an appropriate increase.  But by recommending three infantry battalions and their attendant logistical support, the Secretary general has added an entirely new and unnecessary dimension to the UN Mission in Ethiopia and Eritrea (“UNMEE”).  This is not simply a budgeteer’s bean-counting quarrel over personnel levels, but a fundamental disagreement about the most appropriate and feasible role for the UN in international conflicts.

Peacekeeping, as noted above, historically has relied upon the consent of and cooperation by parties to a conflict.  Where that is absent, not only does peacekeeping fail, but so too will “peace” itself.  Many UN advocates are dissatisfied with the limited UN role such hard-headed assessments imply, and the Brahimi Report[81] is an express attempt to transform their analysis into accepted doctrine.  The Secretary General, for one, has been very explicit about his preference for transforming “peacekeeping” into something else:  “to go prepared for all eventualities, including full combat.”

The three infantry battalions authorized for UNMEE are admittedly but a small step toward “full combat” preparedness, but it is in any case the wrong step in the wrong direction.  If the Ethiopian-Eritrean cease-fire breaks down, military observers will be able to detect and report it for appropriate political or diplomatic action.  Moreover, if such a breakdown occurs, signaling a true political disagreement, the three infantry battalions will neither resolve the dispute nor be numerous enough to deter combat.  They certainly will not be able to “enforce” the parties’ compliance with a disintegrating peace agreement.  In the end, if Ethiopians and Eritreans are not willing to uphold their own peace, what other nationality is willing to kill and die for it?

So what is the point of the Secretary General’s proposal to deploy the three battalions?  Perhaps it is simply idealism about the UN role, but more likely it reflects a determination (fully supported by the Clinton Administration, and abundantly reflected in the Brahimi report) to make the UN Secretariat a more active player in international disputes.  But introducing a substantial outside presence into such a conflict is no guarantee of increased security  —  for the parties or the UN observers  —  and it may contribute to greater animosities if one side (or both) sees the UN assuming an openly partisan role.  Abandoning the UN’s historical peacekeeping role is a prescription for higher UN expenses, more failures and less support in Washington.  Sending observers to the Horn of Africa is sensible, but the infantry battalions should stay home.

III.  UN CIVIL ADMINISTRATION IN PEACEKEEPING: CASE STUDIES IN ASIA AND EUROPE

THE TRUSTEESHIP MYTH

It is an extraordinarily widespread misconception that the United Nations Charter confers on the organization a general power to put “failed states” into international receivership.  Leaving aside the issue of the UN’s competence for such undertakings, there should be no misunderstanding about what the Charter actually provides.

Chapter XII of the Charter establishes an “International Trusteeship System,” for the “administration and supervision of such territories as may be placed thereunder by subsequent individual agreements” under Article 75.[82]  Article 77 specifies the three categories of territories that may be placed within the system:

territories now held under mandate;

territories which may be detached from enemy states as a result of the Second World War;  and

territories voluntarily placed under the system by states responsible for their administration.

To dispel any confusion, Article 78 expressly provides that the “trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.”

The mandates that the United Nations inherited from the League of Nations were essentially transferred intact, and the former “mandatory powers” under the League became the “administering authorities” for the United Nations under Article 81, except for the Pacific Trust Territories taken from Japan and given to the United States.  As a practical matter, the mandatory powers had essentially unfettered discretion under the League, and the League had no administrative or management role with respect to the mandates.  When the mandates became trust territories, the United Nations likewise assumed no administrative or management role.  Only one territory was detached from an “enemy state” after World War II, with the colony of Somaliland being taken from Italy.  (Ironically, Italy was subsequently named as the administering authority for the territory until it became independent.)  No territories were ever “voluntarily placed under the system by states responsible for their administration,” a provision that had been intended to assist the transition of colonies toward independence.  Instead, the colonial powers invariably preferred to handle the issue of independence on their own.

Significantly, there never existed under the Charter’s Trusteeship provisions (specifically Article 81) a case where the United Nations itself served as the “administering authority” for any trusteeship.  In all cases, the authorities were individual member states.  The Trusteeship Council, created by Chapter XIII of the Charter, had only broad oversight responsibility under the authority of the General Assembly.  Recognizing the effective end of its duties, the Trusteeship Council suspended operations effective November 1, 1994, upon the independence of Palau, the last trust territory.

The only case of even marginal UN administrative authority was the UN Temporary Executive Authority in West New Guinea (“UNTEA”).[83]  After the Netherlands granted independence to Indonesia in 1949, it held on to West New Guinea, with the status of that territory to be agreed later between Indonesia and the Netherlands.  When agreement proved impossible to reach, Indonesian forces began attacking what they called Irian Jaya, precipitating direct UN involvement through Secretary General U Nu.  Indonesia and the Netherlands reached agreement for the transfer of authority first from the Netherlands to UNTEA, and then from UNTEA to Indonesia during an agreed-upon, seven-month period from October 1, 1962 to April 30, 1963.

During this fixed period of time, officials from the Netherlands were replaced by officials from Indonesia, or local inhabitants of Irian Jaya designated by Indonesia, and the actual United Nations role was quite limited.  Moreover, the assignment for the UN was not to create a new government for the province, but to transfer power from one UN member state to another.  The governments of Indonesia and the Netherlands paid the full costs both of UNTEA, and the UN Security Force in West New Guinea in equal amounts.

Similarly, in cases as diverse as Namibia, El Salvador, and Cambodia, where there were extensive roles for the United Nations in a variety of civil matters, none of them involved the complete administrative responsibility for a country, however small.  In each such case, an existing administrative authority, whether or not of questionable legitimacy until elections could be held, existed and could carry out most if not all of the regular functions of government (even if not adequately by “Western” standards).  By contrast, in Kosovo and East Timor, the UN was given essentially complete administrative control over two political entities, an unprecedented (and virually simultaneous) expansion for which the UN was singularly unprepared.

KOSOVO

Following NATO’s air campaign against former Yugoslavia, the Security Council established the United Nations Interim Administration Mission in Kosovo (“UNMIK”) in Resolution 1244 on June 10, 1999.  This decision came as part of a complex, proposed post-war operation that saw various roles in Kosovo divided among UNMIK, several specialized agencies of the United Nations such as UNHCR, the Organization for Security and Cooperation in Europe (“OSCE”), and the NATO-led Kosovo Force (“KFOR”).  Indeed, one may realistically ascribe a major share of responsibility for the current uncertainty in Kosovo precisely to the large number of international organizations (not to mention the accompanying non-governmental organizations) that descended on Kosovo after the war.  The lack of clear division of responsibility among the various international components, and the desire of the interested parties to play one off against the other was evident from the beginning.  For example, then-Serbian President Slobodan Milosevic, in the negotiations resulting in the withdrawal of Serbian forces from Kosovo, repeatedly sought a larger role for the United Nations, especially in the oversight of NATO troops in Kosovo.[84]  From Milosevic’s viewpoint, the greater the Security Council’s authority in Kosovo, the greater the role that the Russian Federation and China, Permanent Members of the Council, could play.  By contrast, most NATO members wanted the “peacekeeping” force to be kept under NATO control.[85]

As adopted, Resolution 1244 (fourteen in favor, China abstaining) authorized deployment of a UN civil and security presence in Kosovo, pursuant to Chapter VII of the Charter, in order to assist in implementing the principles contained in the G-8 agreement of May 6, and the May 3 paper agreed between former Finnish President Martti Ahtisaari, the EU representative and Igor Ivanov, Russian Foreign Minister.  The Resolution called for “an immediate and verifiable end to violence and repression in Kosovo”;  the “complete withdrawal” of all Yugoslav military and police forces from Kosovo;  and the demilitarization of the Kosovo Liberation Army (“KLA”).  The Resolution also authorized the deployment of KFOR, established an “international civil presence . . .to provide an interim administration,” and provided for creation of a political process leading to substantial self-government.  Resolution 1244 authorized the Secretary General to appoint a Special Representative to head the international civil presence, and charged it with:  promoting “substantial autonomy” and self-government in Kosovo;  launching a political process to decidee Kosovo’s future status;  supporting humanitarian and disaster relief and the reconstruction of key infrastructure;  maintaining civil law and order through an international police force;  promoting human rights;  and assuring “the safe and free” return of all refugees and displaced persons to their homes in Kosovo.

Although there has been intense criticism of UNMIK in virtually all respects of its mandate, the central policy issues remains, as it has been from the outset, whether any UN administrative activity had a realistic chance for success in the muddled international political environment in which it was placed.[86]  In turn, this basic dilemma underscores the American and NATO policy failures that led to UNMIK’s creation in the first place, and to the inherent unlikelihood that it could perform the tasks assigned to it.  In short, we should not conclude too readily that UNMIK is a “UN failure” only, but is at least as much  — and perhaps primarily  —  an American  and European failure as well. (NATO and KFOR have also been heavily criticized, starting from the outset when NATO was surprised and outflanked by a rapid Russian redeployment from Bosnia.[87])

Beyond any doubt, the unresolved political status of Kosovo after the NATO air campaign made it effectively impossible for UNMIK or KFOR to operate under traditional peacekeeping rules.  Obviously, there is no agreement whatever among the parties on what the future of Kosovo should be, and this disagreement is not likely to be made any easier even Milosevic removed from power in Belgrade.  The Serbian position remains that Kosovo is part of Yugoslavia, even as the leadership of the KLA continues to insist on independence and retains at least some of its weapons.[88]  (Fewer Kosovars seem to have unification with Albania as a longer-term objective, although some have not given up.[89])  Whether the Rambouillet formula of substantial autonomy for Kosovo within Yugoslavia still has any effective support remains to be seen, with press reports indicating that even the American authors of the formula had begun to doubt whether it had any life left.[90]  Numerous other problems revolve around this fundamental political question, notably the return of Serbian refugees and the instruments of Serbian authority, such as police and other security forces,[91] and hampered economic recovery efforts from the outset.[92]  In turn, these issues implicate the question whether Kosovo can ever be a truly multiethnic society, the professed objective of the NATO war effort,[93] or whether the Serbs will be just as effectively ethnically cleansed from Kosovo as they had hoped to do to the Kosovar Albanians,[94] or effectively confined to “safe areas” under UNMIK protection.[95]

Accordingly, one can readily sympathize with UNMIK’s personnel as they struggle in the inherently ambiguous  —  contradictory would be a better description  — milieu of attempting to reconcile what the KFOR contributing governments really want, compared to what Serbs and Albanians want.[96]  That said, however, it is not simply the policy confusion surrounding UNMIK and KFOR (a large, perhaps dispositive measure of which is American) that is troubling, but the nature of its mandate itself that should particularly concern the United States.  The Serbian withdrawal left much of Kosovo without effective administration, and the Kosovar Albanian civil structures in 1999 were inadequate (or nonexistent) to assume the burdens of interim government;  as Ambassador Richard Holbrooke said then, Kosovo will be “a mess for a long time.”[97]  Accordingly, Americans should question whether the United Nations was the proper vehicle to assume the responsibility, and we should question further why essentially statist civil models were accepted as the proper administrative mode.

First, on the role of the United Nations, as explained briefly above, there is no real UN experience in civil administration of the type required in Kosovo.  Clearly, in the aftermath of the NATO air campaign Kosovo faced a collapse of governmental authority somewhat comparable to Germany at the end of World War II.[98]  There, the victories Allies installed military government until new political institutions could arise.  While not free from critics, the Allied occupation, the values transmitted by the occupying forces, and the rapidity with which new indigenous, democratic German political entities arose, has to be judged a success.  Accordingly, it is legitimate to ask why KFOR was not straightforwardly given analogous responsibilities, with the UN role limited to the targeted provision of humanitarian assistance through its various specialized agencies, rather than creating a large UN presence.

Moreover, since the UN was slow to deploy compared to KFOR,[99] the result was to expand KFOR’s responsibilities, and hence the role and cost of American forces.  Indeed, most of the hard decisions on key security questions appear to have been made by KFOR in any event,[100] and many UNMIK civilian police were simply not prepared for the violent conditions they faced.[101]  Secretary of Defense Cohen said expressly at the time that “[t]he more we do, the less incentive there is for the U.N. to come in and assume that burden.  This is a mission that doesn’t belong to NATO forces.”[102]  As it turns out, the multiplicity of international parties involved in the Kosovo effort has itself also been a problem from the outset.[103]  Moreover, the Kosovar Albanians had little desire to put aside their long-held political ambitions to gain complete control of the province, thus complicating every step the UN had to take.[104]  Indeed, one important KLA leader called quite early on for Kosovo to be represented in the United Nations and said of Special Representative Bernard Kouchner that he and the UN mission “behave as if the people of Kosovo were at their service, and not the United Nations and Mr. Kouchner trying to help the people of Kosovo.”[105]

Second, having chosen the United Nations as the vehicle, and having watched for over a year as UNMIK has attempted to carry out its responsibilities, one can only be struck by the extent to which European social welfare models appear to be inspiring UNMIK’s approach to the administration of Kosovo.  UN Secretary General Kofi Annan announced enthusiastically at the outset that reconstructing Kosovo would take ten years.[106]  Concededly, a social welfare approach may have been inherent in the division of labor between the United States and the EU agreed to by the Clinton Administration:  that the United States would be primarily responsible for the bombing, and the EU would be primarily responsible for the reconstruction.  This was itself a highly questionable decision from the American perspective, especially since it effectively guaranteed that the head of UNMIK would be a European.[107]  Nonetheless, even assuming that this progression of decisions was inevitable, one is also struck by the inadequacy of the resources flowing into Kosovo from the EU,[108] thus creating a “worst of both worlds problem:  the scope of UNMIK’s governmental responsibilities is too vast, and the resources available to it far from adequate.[109]  As UN Special Representative Kouchner, a physician, described it:  “It’s like being on a drip, a resuscitation bottle for the whole society.  It keeps us barely alive month to month, but only if we reduce the dosage to the minimum for survival, so we don’t collapse.”[110]  Thus. another alternative, also cleaner than bringing in the UN, if less desirable from an American point of view, would have been to use the EU or the OSCE to head the interim administration, making Kosovo a European rather and a UN protectorate.[111]  Perhaps direct, unambiguous EU responsibility might have overcome the lack of support and interest that reportedly brought Kouchner “close to despair” and resignation.[112]

In May, 2000, a delegation of Security Council Ambassadors visited Kosovo.  Bangladeshi Permanent Representative Anwarul Karim Chowdury, said candidly:

“It is impossible for us, sitting in New York, to get an idea.  The enormity of the task of UNMIK could not be comprehended here.  I am sure that when the Security Council passed resolution 1244, it had no idea how big the task would be in running the day-to-day affairs of Kosovo.”[113]
Despite the consciously optimistic tone of the Secretary General’s most recent report, the substance of his message shows UNMIK’s continuing lack of achievements.[114]  In short, UNMIK is poised at the edge of massive failure,[115] failure caused by the ambiguous and contradictory nature of its mandate,[116] the inadequacy of the UN’s capacity to undertake such a mission,[117] the radical political uncertainty and sometimes violent disagreement among the parties which persists to this very moment,[118] and the tension between UNMIK’s aspirations and its resources.  And this failure will not be cheap.

EAST TIMOR

Although the August 30, 1999, East Timor referendum resulted in an overwhelming vote in favor of independence from Indonesia, the subsequent violent attacks by anti-independence forces[119] resulted in nearly half of East Timor’s population of 800,000 being displaced, and massive property damage.  The UN Mission in East Timor (“UNAMET”) was withdrawn (except for a small number of personnel in Dili) by mid-September.[120]  Although the collapse of the UNAMET effort is worthy of its own intensive study in any analysis UN peacekeeping policy, I will focus here only on the subsequent and ongoing UN efforts begun in the wake of the UNAMET withdrawal.

Nonetheless, it is critical to understand that the UN’s current presence in East Timor is largely shaped by the circumstances of the failed UNAMET efforts, and, in effect, represents efforts by the Security Council to mitigate problems that were caused or exacerbated by the UN’s own prior actions.[121]  Specifically, the UN’s (and its members’) unwillingness or inability to anticipate the violence following the fully-foreseeable independence vote by the East Timorese was an almost unprecedented act of international negligence.  After the fact, the press reported that within the UN Secretariat, there was considerable doubt about the wisdom of UN involvement in the referendum process.  A UN official’s internal memorandum at the time was said to have concluded:  “I cannot hide my apprehension regarding the course on which we are about to embark.”[122]  If so, the Secretariat’s apprehension was well-hidden.  Indeed, a week after the violence began, the Secretary General said at a news conference that “nobody in his wildest dreams” imagined it.  “If any of us had an inkling that it was going to be this chaotic, I don’t think anyone would have gone forward [with the vote].  We are no fools.”[123]

 

The Next President and NATO

By John R. Bolton

President Clinton and other NATO leaders have indulged in considerable self-congratulatory rhetoric following the Yugoslav air campaign.

President Clinton and other NATO leaders have indulged in considerable self-congratulatory rhetoric following the Yugoslav air campaign.

Nonetheless, Kosovo’s long-term consequences for the Alliance are very troubling. Although it seems counterintuitive to say so after a military success, and despite the technically sophisticated display of American weaponry, NATO’s political unity is crumbling. With President Clinton visibly relieved he can now return to domestic policy, it will inevitably fall to the next president, after 18 months of even more decay, to try to repair the damage.

NATO’s disunity is fundamentally caused by the confused and often contradictory ways in which the European Union (E.U.) approaches foreign policy and national security issues. For years, the Europeans have said – and most American policy-makers have agreed – that an enhanced E.U. security capability is entirely consistent with NATO. The European Union’s effort to move from “political cooperation” to a common “security and defense identity,” they have said, can easily coexist, either beside NATO or within it. There is no effort to supplant the United States, they have said, only to provide an “alternative” to the American-led alliance.

Kosovo tells us that the United States must reject this logic once and for all. If the E.U. were really capable of a united security policy, which is doubtful both politically and militarily, it would undermine the sole remaining argument for an American military presence in Europe, which is that the Europeans cannot handle these critical questions themselves. If so, public opinion in America, from the right and the left, will rapidly conclude that America does not need the cost or the aggravation of supporting the E.U.’s increasingly divergent political goals. Only by straight forwardly confronting both the Europeans and ourselves with this analysis is there a realistic chance of sustaining the Alliance in anything like its present configuration.

Kosovo made these conclusions painfully evident in several respects. First, there is the immensely troubling fact of the lengthy internal debate over whether NATO could begin its military campaign without a resolution from the United Nations Security Council authorizing such action. Although many senior officials within the Clinton administration would instinctively have preferred this alternative – and will undoubtedly do so in future contingencies – the obvious threat of Russian and Chinese vetoes persuaded even the administration of “assertive multilateralism” that this approach was a non-starter. If only persuading the rest of NATO had been so easy.

Now, overall international political responsibility for Kosovo has been given to the Council, with ramifications we can only await with foreboding. It should be a first priority for a new president to make it unmistakably clear – to NATO and the rest of the world – that we reject Secretary General Kofi Annan’s view that the U.N. is the “sole legitimate source” in the world for the authorization of force.

Second, internal NATO political divisions during the air war routinely affected tactical military decisions. French President Jacques Chirac has publicly boasted about his impact on targeting decisions. While Mr. Chirac perhaps overstated his personal role, the media have been replete with finger-pointing accusations by NATO military commanders laying blame for the slowness and seeming ineffectiveness of the operation during its first two months. Undoubtedly, the passage of time will reveal more instances of E.U. members pursuing agendas unrelated to the military campaign at hand.

Third, and even worse, NATO political leaders engaged in an unseemly and corrosive public debate on whether or not to commit ground troops to combat if Slobodan Milosevic did not accept NATO’s conditions. Principal blame here must go to President Clinton for publicly debating with himself, first ruling out ground combat troops, and then reversing field.

Nonetheless, the Europeans participated actively in this foolish display of the primacy of domestic politics over Alliance unity. British Prime Minister Tony Blair, implicitly in his own statements and in the unrelenting spin of his subordinates, was NATO’s “hawk,” repeatedly advocating a ground war. By contrast, German Chancellor Gerhard Schroeder took exactly the opposite public position, to the evident delight of Belgrade. Ironically, all three came out ahead in the political short term: Mr. Clinton escaped a potential catastrophe (his version of success), Mr. Blair is said in London to have had a “good war,” and Mr. Schroeder is now called “kriegskanzler” in Germany. NATO is the real loser.

Fourth, especially for the Europeans, it is painfully clear the United States carried the overwhelming military burden of the Yugoslav campaign. Still more important is the clear explanation: Our military capabilities already far exceed those of Europe, and the gap is growing. For all their posturing about and independent security and defense identity, E.U. members have been wildly unenthusiastic about matching their rhetoric with their money. Indeed, Mr. Blair’s “hawkishness” was itself a classic “free ride,” both politically and militarily. He knew President Clinton (and Vice President Al Gore) almost certainly could not politically accept a ground war, and he also knew American troops, technology and support would be central to any NATO ground effort had one ever eventuated.

This evidence is proof positive that everything wrong with the E.U.’s internal decision-making process has now infected NATO. The result is the unambiguous deterioration of NATO’s decisiveness and flexibility, two characteristics the E.U. has never possessed. Perhaps the Europeans can accept such confusion, both strategic and tactical, but we should not. NATO’s decline and demise would be most unwelcome for the United States, but equally unwelcome is the hobbling of our will and our capability to act unilaterally where necessary. It is far better to debate and resolve this question during our next presidential campaign than to let NATO simply slide into senescence.

What Price Human Rights?

John R. Bolton

Kosovo is an example of a policy gone horribly wrong, but not because of insufficient attention to human rights by the administration.

Dear John:

I have noted with interest your recent appointment to the Commission on International Religious Freedom, recently created to report on violations of religious rights around the world. You would not have accepted this assignment, I am sure, if you did not care about stopping human rights abuses. At the same time your bona fides as a conservative make you an exquisite interlocutor with whom to debate the state of U.S. human rights policy today.

As far as I am concerned, that policy is pretty much of a mess. I don’t believe that human rights ought to be the sole consideration governing U.S. international relations or even always the primary one. But I do believe that they ought to be a serious factor in how we relate to other nations, and that violations ought to have real and consistent consequences. That is both because respect for human rights is endemic to America’s understanding of itself and because ignoring human rights crimes often has profoundly deleterious effects upon our national interest. (One of the reasons we are now so tangled up in Bosnia and Kosovo is because two Presidents waited far too long to counter Milosevic’s evil ambitions.)

Given this premise, then, it helps not at all for the United States to send China decidedly mixed signals on its abominable human rights record. It is certainly confusing at best to trumpet our outrage at abuses in pariah states like Cuba and Libya while ignoring similar violations by allies like Saudi Arabia and Turkey, or trading partners like Nigeria and Indonesia. To waffle on the Land Mines Treaty or the International Criminal Court (ICC); to let Karadzic and Mladic go scot-free; to ignore Africa altogether–the policy is a mess.

But it is too easy just to blame the administration. For in my view far too many conservatives have also abandoned bedrock principles when it comes to human rights. After all, the protection of individual liberties against oppressive governments is supposed to be at the heart of conservative political theory. But as Jesse Helms points out in a recent article in Foreign Affairs, it is the conservative business community that has opposed economic sanctions designed to win those liberties. I personally believe sanctions to be of limited utility, and even then only in very circumscribed situations (and Amnesty itself takes no position on them); but they certainly ought to be included in our quiver. So should the possibility of military intervention. But it is too often conservative voices that most vociferously resist a U.S. peacekeeping role overseas to stop the slaughter of innocents.

It troubles me that a Republican Congress allows taxpayers’ dollars to be wasted when U.S. security assistance is used to commit human rights violations in places like Colombia or Turkey, and when political asylum seekers, many of whom have stood up for American values in their home countries, are tossed into county jails with the general prison population.

I know from your recent article in these pages on the International Criminal Court (“Courting Danger: What’s Wrong With the ICC”, Winter 1998/99) that part of your own criticism of the human rights movement has to do with your disdain for so-called “customary international law.” But of course the basis for most customary law when it comes to human rights is the Universal Declaration of Human Rights and the Covenants that flow out of it. Such principles of international law were incorporated explicitly into the International Religious Freedom Act that established the commission on which you now sit because, without them, your impending criticism of other nations’ treatment of religious minorities would risk sounding hollow, parochial, even xenophobic.

Elsewhere you have implied that General Pinochet should be tried, if at all, by his Chilean compatriots (“The Global Prosecutions”, Foreign Affairs, January/February 1999). But given Pinochet’s manipulation of the Chilean constitution before he stepped down–and his threats to cause mayhem ever since–that is like asking a jury to render a verdict while a defendant holds a gun to its head.

So I guess it comes down to this: while I am happy to skewer the Democratic administration whenever it deserves it, I am left wondering how do those conservatives who mistrust sanctions, resist military intervention, and pooh-pooh international law intend to stop human rights violations?

I certainly recognize that the human rights movement has made its own share of mistakes, both substantive and strategic. What I wonder is whether those of all political stripes can’t find common ground to stop these tragic abuses. Perhaps our exchange will provide the beginnings of an answer.

Sincerely yours,

Bill

 

Dear Bill:

I agree with you that U.S. human rights policy today is “pretty much of a mess.” But to understand why, we need to start well before any analysis of the appropriate role of “human rights” in foreign policy. We must first understand how freedom is best protected in individual nations, which is, after all, where we live.

We should really be debating individual liberty, not “human rights.” Liberty is America’s highest value, and what we offer by example to other nations ready to bear the heavy burden of sustaining it. By contrast, “human rights” stresses democratization more than liberty, and carries too much unrelated baggage, including values that are often at war with liberty. Isaiah Berlin captured the point well in his essay “Two Concepts of Liberty”, explaining how Benjamin Constant asked why a man should deeply care whether he is crushed by a popular government or by a monarch, or even by a set of oppressive laws. He saw that the main problem for those who desire ‘negative’, individual freedom is not who wields this authority, but how much authority should be placed in any set of hands.

I start with an overall skepticism about all aspects of government, not just those few protected areas on the “human rights” honor roll. I note that your letter doesn’t define “human rights.” Perhaps you agree with me that continuing economic deregulation and lower taxes should currently be our highest political priorities in enhancing the liberty of individual Americans. Or, perhaps you prefer such things as mandating patients’ “bills of rights”, enforcing racial and gender employment quotas, and limiting political contributions and expenditures. Your view will certainly measure your commitment, and that of your “human rights” colleagues, to real liberty.

Next is the operational issue of how best to protect liberty. The Framers of our Constitution thought this their principal task, which is why they labored to create a national government of separated powers, and a division of authority between national and state governments. The Framers understood that it was the institutional clash among the different branches that would most effectively keep power from “one set of hands.” Michael Novak has summed up the Framers’ belief: “In God we trust. . . . For every one else, checks and balances.”

Although even many Americans believe that the Bill of Rights is what protects their “human rights”, this is a profoundly misguided view both of what the Framers intended, and of what, in practice, protects our liberty. Your letter mentions the Universal Declaration of Human Rights rather than the Bill of Rights, but James Madison’s cogent assessment applies to both: “experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”

The Constitution protects liberty not just because it has the best list of rights, but because its daily operation prevents the concentration of power that would threaten those rights. Clearly Madison’s approach was correct: history’s pile of meaningless constitutions and declarations about “rights” could severely depress the market price of wallpaper.

Thus, my analysis, while libertarian in outcome, is Burkean in logic–to understand history’s most successful defense of liberty before venturing abroad. This explains my concentration on matters you apparently think are “parochial, even xenophobic.” I am nonetheless unshakably of the view that these preconditions to safeguarding liberty within our own nation must inform our foreign policy.

Let me, therefore, set out what I see as the basic propositions that follow from this experience:

First, American foreign policy decisionmakers should be responsible for and accountable to Americans, not to “world opinion” or “the international community”, whatever those might be. For it is, of course, American national security we are discussing when we discuss foreign policy.

Second, our interests and our preferences may or may not be the same thing at the same time; no U.S. policy can succeed that does not comprehend and analyze these variables distinctly and dispassionately. To put it bluntly, the unswerving pursuit of preferences over interests may compromise the advancement and protection of both.

Third, reasoning from abstract principles alone does not resolve individual cases, and emotional self-satisfaction is not the same as policy. As the New Republic put it in 1914, “unless you build from the brutalities of earth, you step out into empty space.” An adult foreign policy demands neither instant gratification nor conformity to one-size-fits-all prejudices.

The Clinton administration’s failure to comprehend such prudential considerations–let alone follow them–substantially explains why not only our human rights policy, but our foreign policy as a whole, is a “mess.” The real determinant of success internationally is judgment, the ability to discern conflicts among our preferences and assign priorities for our interests consistent with available resources. Exercising that judgment is not aided by slogans or buzz words, which evaporate when confronted with a complex and contradictory reality.

Sincerely,

John
Dear John:

Your letter is very helpful, although I suspect we live in two different worlds.

While liberty may be “America’s highest value”, it has never been the only one–life, happiness, property and a free conscience were the others the Founders derived from natural law–and its preservation is put in jeopardy if it stands in isolation from the others. Furthermore, as the conservative scholar Clinton Rossiter made clear in his classic study of the Founders’ political thought, the purpose of government, in addition to protecting liberty, was to “secure [our] persons and property against violence, remove obstructions to [our] pursuit of happiness, help [us] to live virtuous, useful lives, and in general preserve the largest degree of natural equality.”

Now you and I will certainly agree that democracy is the best form of government by which to obtain these goals, but where did you get the idea that “‘human rights’ stresses democratization more than liberty”? In fact it is just the opposite. Nothing in the international human rights framework precludes Jordan from having a King, though it certainly prohibits that King from imprisoning his nonviolent critics. Indeed, some of the world’s purest democracies, including ours, are guilty of serious human rights violations.

You ask for a definition of “human rights” and I present it to you in the form of the Universal Declaration of Human Rights. You are correct of course when you disparage the power of parchment alone to secure rights . . . which is exactly why you should support some form of international enforcement mechanism like the International Criminal Court. Absent that, the question posed in my first letter becomes even more urgent: however do you propose to stop unfair trials, false imprisonment, torture and genocide?

Your answer seems to be that we should ruminate on the American experience and make the tough calls (whatever those are). But even your hero Burke taught that every nation has a place in a worldwide civilization, albeit one unfolding in accord with what he called “a divine tactic.” Tell American business, or our soldiers stationed overseas, that we should ignore “world opinion”! It is exactly in order to secure American interests that we are forced to take others’ interests into account in our decision making.

There are two reasons why human rights must not be peripheral to American foreign policy making. First, because they reflect those fundamental American values, including liberty, that Rossiter describes. If we would be the model you wish us to be, then our policies must conform to our values. Maybe an artist’s model can get away with sitting pretty and passive, but we can’t. And when we do, as we did in 1994 while Rwanda was imploding, the consequences are enormous–for other people surely, but also for any sense of a moral order in the world, to say nothing of our own souls. This is in part, I presume, the motivation behind your work against religious persecution.

The second reason is because our own political and economic interests are so often implicated in assuring respect for other people’s fundamental human rights. When foreign countries neglect labor standards, they tempt U.S. companies to transfer production and jobs overseas. When U.S. corporations invest internationally, they risk enormous losses caused by the instability and corruption that the denial of human rights so frequently fosters. Given increasing globalization–the fact, for example, that our pension funds are regularly invested in foreign markets–almost every American has a direct financial stake in encouraging respect for human rights. And, as we have seen all too clearly in the recent Chinese missile secrets scandal, a national security stake as well. For who can doubt that had the United States been more willing to stand on principle and engage China over its human rights abuses, so we would have been less inclined to overlook China’s intelligence perfidy for fear of it jeopardizing a pocketful of gold?

Be it toxins that know no boundaries and are spread when a free press or independent monitoring groups are stifled; drug interdiction made more difficult when U.S. counter-narcotics assistance is diverted to commit political crimes; immigration flows caused by the denial of basic rights at home; or terrorists, their human rights abuses having failed to deter us from supplying them arms, turning those very same arms against us–in these ways and dozens more, taking human rights seriously is far from abstract and far from just a matter of preference.

This is the world I live in, John, and, whether you like it or not, you do too. So my question to you once again is simply this: what are we going to do about it?

Sincerely yours,

Bill

 

Dear Bill:

I must say I am somewhat confounded by your approach so far. I expected that you would describe why you (and the larger human rights community) believe that human rights should be central to American foreign policy. Instead, you have adopted a scattershot approach to what are in your view various mistaken foreign policy decisions, and thrown several miscellaneous punches at me personally. Flattered as I am by the personal attention, I want to stay on course to delineate the real differences between our respective positions. Let me try again.

First, U.S. foreign policy decisionmakers–as opposed to academics or pressure groups–have to make American policy. Is the United States the centerpiece of your foreign policy concerns, as it is for me, or is it something else? If it is a broad theory about the way the world should look, or “world opinion”, or whatever else you think is valuable, I think you should say so unambiguously.

Second, abstractions and generalizations, whether about “human rights” or “geostrategic imperatives”, mask often difficult, case-by-case choices among values and interests. Setting priorities and making choices (and understanding and accepting the consequences) is what policy is about, not simply talking about condemning this injustice or righting that wrong. Let’s look at a catalogue of specific cases.

* China: You argue that “engaging” with the PRC about its human rights abuses would have made us “less inclined to overlook China’s intelligence perfidy for fear of jeopardizing a pocketful of gold.” I think you have this badly mixed up. In the political circles where I travel, we have been concerned about PRC efforts to proliferate the technology of weapons of mass destruction, its military adventurism in the South China Sea, and its repression of religious freedom and ethnic differences for some time. Let me allay any fears you have: real threats to U.S. national security easily trump commercial concerns.

I want to get in a word here about Taiwan as well. One of President Clinton’s worst acts of appeasement was his remarks in China mouthing almost word for word the PRC’s “Three Nos” policy (no independent Taiwan; no “two Chinas”; no Taiwan membership in international organizations requiring “statehood”). Although his much-touted speech about PRC human rights violations received more attention here, it was apparently broadcast unannounced and untranslated in China; by contrast, the President’s implicit disparagement of the free society on Taiwan was flashed around like a Communist Party press release. I didn’t notice that human rights groups sprang to Taiwan’s defense; perhaps I missed it. The critical tone and substance concerning China in the State Department’s annual human rights report doesn’t redress the balance. Beijing believes that President Clinton speaks best for his administration, not the anonymous scriveners at State.

* Haiti: Deciding whether to intervene militarily in Haiti was a no-brainer, and President Clinton got it wrong. There was no strategic significance requiring intervention, which was justified almost entirely from a “human rights” perspective. We can all thank Providence that our casualties have been so light. And, on “human rights”, what has been accomplished? Almost nothing, after over four years of U.S. occupation. Political assassinations of opposition leaders are back in style, parliament has expired, and Haiti is again ruled by presidential decree. What a mistake from start to finish.

* Somalia: This was the Clinton administration’s first exercise in “assertive multilateralism” and “nation-building.” It was one thing for President Bush to launch a massive humanitarian relief operation, which nonetheless had a limited mission and duration. It was quite another to turn Somalia, a place of no discernible interest to the United States, into a massive social experiment, which is what the administration did with relish. The tragic deaths of American soldiers in Mogadishu only underline how perilous it can be to pursue abstractions over interests.

* Chechnya: Press reports indicate that human rights abuses were probably committed by the military forces on both sides of the Chechnyan war of secession. Once again, however, I see no tangible American interests implicated by the fighting, whichever side was behaving most reprehensibly. My approach would have been to tell both sides privately through formal and informal channels to desist, but I would not have contemplated any military involvement to correct human rights abuses. Would you?

Obviously this list could go on and on; you or I could legitimately have picked different conflicts or problems. But all of them illustrate my central point: making policy involves trade-offs between interests and values that often speak in absolute terms. The human rights community has never admitted this dilemma, let alone come to terms with it.

Sincerely,

John

 

Dear John:

Of course we are talking about the role of human rights in American foreign policy. Where we differ is that I believe that making human rights concerns central to that policy–not making them the exclusive determinant or even always the pre-eminent one but always at least integral to it–is in our best interests. That, as I have said in both my letters, is for two reasons: because human rights mirror America’s highest values (including liberty) and any nation that abandons its highest values betrays itself, and because nine times out of ten the pursuit of human rights is also in our best strategic interests. Furthermore, and not incidentally, the United States has undertaken a series of legal obligations with profound human rights consequences. You may not like it but the Senate has ratified the Convention Against Genocide, as well as many other human rights-related treaties and covenants, and to flout the rule of law by acting as if those obligations mean nothing is hardly the way to win friends for the democratic way of life around the world.

Where we also differ, I guess, is that I believe that there must be some consistency to our human rights policy based upon a coherent set of principles–philosophical and/or legal. Does this mean that we respond with the same degree of force or the same tactics to every human rights crisis? Of course not. I don’t know a single human rights organization that advocated U.S. military intervention in Chechnya, where to do so might have gotten us into confrontation with another nuclear power. But when genocide was underway in Rwanda, the UN commander on the scene believed (correctly, as it turned out) that it could be short-circuited with the provision of just a few hundred more UN troops; and as the United States has legal obligations to prevent genocide, there is no excuse for our obstructing an international response.

You advocate “setting priorities and making choices” but you give no indication of the basis upon which you could do so, and if that basis is somehow contained in the four examples you discuss, it will take a keener mind than mine to tease it out. (Your observations on Haiti, by the way, are startling. You claim that U.S. intervention was based upon “no strategic significance” and that “almost nothing” in the way of human rights has been accomplished. But have you forgotten the thousands of Haitian refugees streaming toward our shores? And do you really believe that an end to three thousand political killings and who knows how many thousands of rapes is really nothing?)

As it makes foreign policy decisions about human rights, the United States should keep in mind such principles as these: that our criticism of other governments (be it China for religious persecution or Cuba for political prisoners) must rest upon more than American tradition or muscle if it is not to risk being dismissed as mere whim or prejudice; that therefore the United States must actively promote international standards on human rights and abide by them ourselves; that our commitment to those standards requires us to leverage our influence (sometimes diplomatically, sometimes economically, sometimes militarily) to advance human rights; and that there is rarely, if ever, a conflict between such advancement and our national security. On the contrary, in as complex and interdependent a world as this one, enforcing uniform human rights standards–establishing institutions of accountability through which to end impunity, for example–will in the last analysis make the world a far safer place for all of us.

We are in a shooting war in Kosovo today in part because we failed to abide by these principles, failed to be as tough on criminals overseas as we claim to be here at home. Regardless of one’s position on the current military action, it is hard to dispute that, had we acted earlier in Bosnia to stop the slaughter there, and had we taken Karadzic and Mladic into custody after they were indicted in The Hague, the odds are better than even that Milosevic would not be playing the dangerous game he is today.

Certainly it is true that realpolitik requires a balancing of interests rather than a proclamation of absolutes. I would contend, however, that those interests are seriously compromised if we give short shrift to human rights. To base U.S. policy on no more than a narrow notion of today’s profit is worse than shortsighted. It is positively hazardous. It is to end up walking blind through shifting sands.

Sincerely yours,

Bill

 

Dear Bill:

There is no subtle way to say that your policy is at best hopelessly incoherent and internally contradictory, and at worst perilously detached from tangible American interests. You say variously that human rights should be “central” to our foreign policy and not given “short shrift”, that they must be “based on a coherent set of principles” (although not “a proclamation of absolutes”), and that we “must actively promote international standards on human rights.” Even granting that you abjure “the same degree of force or the same tactics in every human rights crisis”, your universalist rhetoric makes it impossible by definition to square your actions with your faith. You say that not “a single human rights organization . . . advocated U.S. military intervention in Chechnya”, but you applaud the U.S. military interventions in Haiti and criticize our passivity in Rwanda. This menu simply confirms my point. It may not bother you, but it should bother any foreign policy practitioner in a democracy who must explain a complicated reality to a confused public.

Your very effort to lock away in the closet the true believers of the human rights movement shows exactly what I mean. You say I give no basis for my priorities and choices, but this shows you have either not read my previous letters, or that you do not understand or acknowledge what national interests are. The choices we face are among individually valuable but often competing interests, and it is precisely my point that there is no magic formula to know in advance how to behave in each diverse case. In Cap Weinberger’s famous phrase, if I said any more here, I would only be repeating myself.

You may finally have acknowledged that we are talking about American foreign policy, but that reluctant admission cannot disguise that what you are really trying to do is construct a world order in which America is simply one more part of the food chain. I do not accept that future. You worry that our criticism of other governments “will be dismissed as whim or prejudice.” If that is what others believe, so be it; the willfully ignorant are not worth our time or resources in any event. If any foreign leaders really think that the consistent advocacy of our basic interests is “whim or prejudice”, I can only hope that they are the leaders of our enemies, because we will prevail easily against them.

Let’s take Kosovo as the last case study, and an excellent one it is because it shows the results when human rights policy goes to war, this time in President Clinton’s air campaign. What truly happened in Kosovo, not in the sunny world of human rights rhetoric but in the real world where idealistic but misguided policies actually take their toll? Hundreds of thousands of additional Kosovars, whose rights we were supposedly protecting, are now dead or have become refugees, separated from their families, never again to return to their homes. In Serbia, the human rights air war has achieved the unthinkable: increasing popular support for an authoritarian regime that denies democratic freedom to the very Serbs now rallying to its side. I see no gain for human rights here.

You say that “the odds are better than even” that earlier action in Bosnia and the arrest of key Bosnian Serb leaders would have deterred Slobodan Milosevic from his present conduct. This is utter nonsense. If there were ever a case where the deterrence theories so beloved by human rights advocates should have worked, it was Kosovo. Instead, they are exposed as unsupported by the evidence, and illusory in their protections.

There is a functioning war crimes tribunal for Bosnia, not to mention the International Criminal Court created last summer in Rome. It was the supposed success of the former that led to the creation of the latter; but neither has had the slightest impact. To the contrary, it is undisputed that the pace of ethnic cleansing dramatically increased after the NATO attacks began. Kosovo is thus a paradigm case where even with powerful weapons literally dropping from the skies on the war criminals, they are still at it. The Clinton administration’s continued threats of war crimes prosecutions show that it is in a state of denial about the havoc its misguided policies have caused.

We do not know, as this letter is written, how Kosovo will ultimately turn out, but we cannot wait until historians decide. Responsibility for the incompetence of the Clinton administration’s human rights war lies not only on the President and his top advisers, human rights devotees all, but also on those who press these policies politically without taking into account the failings of the leaders they elect and support. Kosovo is an example of a policy gone horribly wrong, but not because of insufficient attention to human rights by the administration. The opposite, coupled with what can only be described as a dreamy concept of real American interests, is more likely.

Under the two most recent Republican Presidents, who coupled idealism with a hard-headed view of America’s interests, we won this century’s third world war, and peacefully at that. Under their successor (not to mention their immediate predecessor), who professes that human rights are, as you wish, at the center of his policy, we have stumbled badly all around the world, squandering opportunities and interests without end.

I think the choice is easy, but as our letters reveal, we apparently disagree.

Sincerely,

John

 

Clinton Meets “International Law” in Kosovo

John R. Bolton

The real lesson of Kosovo is that “international law” in political and military matters is increasingly exposed as an academic sham.

Criticism of the Clinton administration’s decision to bomb Yugoslavia has been loudly accompanied by doubts about the legality of the military action. Some of the legal criticism has rested on constitutional objections to the president’s actions, with opponents arguing that it’s Congress’s job to declare war. Other opponents have questioned whether the attacks can be justified in “international law.” In fact, both arguments stem from the basic misconception that bad policy is also necessarily bad law.

As terribly misconceived as I believe the president’s actions to be, there is little doubt that the U.S. and its NATO allies are acting lawfully in the international arena. Indeed, the “legal” arguments raised by Mr. Clinton’s critics are fundamentally political and their purported legal bases ephemeral indeed.

First is the contention that NATO’s military operations violate the United Nations Charter, an argument based on Article 2(4)’s requirement that members “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Similarly, Article 2(3) states “Members shall settle their international disputes by peaceful means.”

Read loosely enough, these provisions could lead to the conclusion that NATO has erred. However, nothing in the charter requires any member to give up its fundamental ability to protect its own national interest. Article 51 expressly recognizes the “inherent right of individual or collective self-defense” for all members.

While Article 51 applies specifically when a member faces armed attack, the “inherent right” it recognizes is far broader. Most Americans — in Congress and the general public — would be very surprised to hear that by ratifying the U.N. charter five decades ago, we had given up our ability to use military force to advance and defend what we define to be in our national interests.

Such a conclusion certainly permits other nations to make a parallel analysis on their own behalf, but that is what most of them do anyway, and it is inevitable in a world that still consists of nation states. To some, this may not be a pretty picture, but that is a matter of aesthetics, not law.

Next, some argue that the attacks violate the North Atlantic Treaty, NATO’s basic charter. These critics, recalling the alliance’s historical mission, cite Article 5, providing that “an armed attack on one or more of them . . . shall be considered an attack against them all,” a clearly defensive provision.

By definition, however, an alliance consists of countries that agree on objectives, here “the security of the North Atlantic area.” So long as NATO’s members hold together on their Balkan objectives, the treaty contains no legal barriers to their actions. If NATO unity collapses, it will be because of political disagreement, not because one member obtains an injunction against further air strikes.

In addition, supporters of the attacks have asserted something they call the “right of humanitarian intervention” to justify military operations to prevent ethnic cleansing or potential genocide. But “humanitarian intervention” is even more malleable than most principles of international law, and is a treacherous ground on which to stand.

Its high-minded morality is especially susceptible to cynical manipulation, as Hitler might have done to justify intervention to protect Sudetan Germans from “mistreatment” in Czechoslovakia. Today, ultranationalist Russian governments could assert “humanitarian” grounds to intervene in the affairs of the new states of the former U.S.S.R., which have substantial Russian minorities. This Russian concern is far from hypothetical, and already evident in several former Soviet republics from Georgia to Tajikistan.

If humanitarian grounds suffice for Clinton administration decision-makers to justify NATO attacks in former Yugoslavia, these grounds can be amply supported as an American national interest. One may agree or disagree that such an interest justifies the risks of losing American lives for something so tangential to traditional national-security concepts, but that is a policy disagreement, not a matter of law.

As Mr. Clinton nervously waits for the bombardment to have its desired effect on the Serbs, his spokesmen have become increasingly vocal in threatening the Milosevic regime with war-crimes prosecutions. These threats have had no visible effect, and thus provide yet another compelling piece of evidence why the new International Criminal Court — created in nearby Rome just this last summer — rests on a foundation of sand.

Serbs (and others) are already facing charges for war crimes and crimes against humanity allegedly committed in Bosnia. If ever there were a case where the prospect of ultimate prosecution and sentencing should be palpable and tangible to senior political and military leaders, those in Belgrade should understand it best of all.

Nonetheless, the Yugoslav leadership has proceeded with its campaigns against civilians in Kosovo as if the Bosnia war crimes court didn’t exist. Even more important, the Milosevic regime has not only ignored the threat of military action, it stepped up the pace of ethnic cleansing in Kosovo after the bombing began.

It defies credulity to believe that a regime not deterred by precision-guided bombs and missiles literally falling on its head will somehow be deterred by the threat of war-crimes prosecutions at some distant, hazy point down the road. Nonetheless, Secretary of State Madeleine Albright’s ill-disguised desire for the U.S. to join the court continues to assert itself. Her repeated threats of bombing Serbia if it didn’t sign the Rambouillet Accords having failed, she has now turned to the next set of threat targets on her clipboard. Those threats will fail as well.

The real lesson of Kosovo is that “international law” in political and military matters is increasingly exposed as an academic sham. While Mr. Clinton’s policy is wrong, he has complete justification for NATO’s actions, and neither he nor his supporters need to resort to exotic legal theories to find the requisite authority. If nothing else beneficial emerges from this crisis, perhaps it will at least give us a more realistic sense of the limits and inadequacies of the chimera of international legal theorizing.

 

Adult Supervision . . . Needed on Stage

By John R. Bolton

UN meeting in Rambouillet represents a massive failure of Western political leadership, and the start of a long and potentially deadly deployment of NATO “peacekeepers.”

Today may be a decisive day in Rambouillet, France, where the civil war in Kosovo is now playing out as a highly stylized form of political theater. Secretary of State Madeleine Albright and British Foreign Secretary Robin Cook arrived over the weekend in a last-minute effort to save the “script” (so described by one key U.S. diplomat).

Behind the stage scenery, however, Rambouillet represents a massive failure of Western political leadership, and the start of a long and potentially deadly deployment of NATO “peacekeepers” in a conflict that is, in reality, nowhere close to resolution.

Rambouillet is yet another in a series of efforts to treat the fragments of former Yugoslavia as discrete and virtually unrelated problems. First was the West’s incoherent reaction to Slovenia’s and Croatia’s declarations of independence from Belgrade. With the United States deferring to the European Union, flush with the apparent success of the Maastricht Treaty, “Europe” badly mishandled its first prime time assignment. Bullied by German insistence on early recognition of Slovenia and Croatia, the E.U. acquiesced; in turn, the U.S. acquiesced to the E.U., setting the stage for Bosnia.

Second, with Slovenia and Croatia essentially safe from direct attack (albeit with considerable tension over Serbian populations inside Croatia), Bosnia had few options. If it failed to declare independence, its Muslim and Croat citizens would be locked into a Serb-dominated, rump Yugoslavia. Splitting off, however, virtually guaranteed a protracted, bloody conflict on Bosnian territory, which is precisely what followed. Relative stability now exists there due to Croat military victories that provided essentially their desired territorial division, while also leaving Serbs relatively satisfied. The 1995 Dayton accord ratified the military status quo, but does not provide a lasting solution.

Third, civil war in Kosovo brought the West back, in perhaps the most contorted posture of all. For historical and cultural reasons, Serbia cannot allow Kosovo to secede, although its population today is overwhelmingly ethnic Albanian. The Kosovar Albanians are badly split, with some desiring a return to their previous autonomous status, and a large militant faction, prone to violence, favoring total independence.

Having persistently misunderstood what actually happened in Slovenia, Croatia and Bosnia, President Clinton and the E.U. are determined to impose a “solution” in Kosovo: the “restoration” of Kosovo’s autonomous status within Yugoslavia. The West rejects both the Serbian position for full integration, and also the armed Kosovar position of independence. Accordingly, Rambouillet is staged as a frog march, for the parties must agree or face the prospect of NATO military action. Thus, even if the warring parties sign an “agreement,” it will not likely embody a true meeting of their minds, but instead carry the high risk of dissolving in renewed killing.

Into this hostile environment -filled with armed factions uninhibited about using violence and terror to tilt the political equation in their direction – NATO is poised to put a sizable force of “peacekeepers,” including thousands of Americans. This apparent inevitability of outside troop deployments is a virtually certain sign that neither the U.S. nor the E.U. really expects the parties to agree, but instead hope to intimidate them into accepting the “script.”

Ultimately, however, the real problem with the Rambouillet theater is that it represents yet another piecemeal effort to deal with a truly complex political, ethnic and religious mix in the Balkans, which simply cannot succeed on its own. While certainly consistent with the previous mishandling of Yugoslavia’s disintegration, the U.S.-E.U. position in Kosovo derives from a morganatic combination of diplomacy and Western domestic politics. America’s direct interests in Kosovo are tenuous at best, and the Clinton administration is acutely sensitive to congressional criticism for the duplicity of its broken promises on the duration of the U.S. deployment in Bosnia. Europe’s interests are far more direct, but its leaders simply lack the will and the muscle to do anything militarily without the United States.

Ironically, one Clinton-E.U. argument is that NATO solidarity on Kosovo is important to avoid spoiling the alliance’s upcoming 50th anniversary celebration, which surely ranks as one of history’s least compelling justifications for placing our troops in hostile territory.

Europeans are using the Kosovo crisis to reassert E.U. predominance in the region, precisely as they did at the very outset of Yugoslavia’s disintegration. President Clinton is simply deferring to the E.U., drawing NATO further into the Balkan quagmire, to struggle later with other pieces of former Yugoslavia, from Macedonia to Montenegro to Sandzak to Vojvodina, again and again for decades.

But America urgently needs an alternative to the president’s aimless, ad hoc drifting. There are two key elements:

* First, and what justifies one last measure of U.S. attention, is the importance of asserting American leadership (and some followership from the Europeans) through NATO, not through the E.U., WEU, OSCE or the United Nations. We need a regionwide approach that makes it unambiguously clear that no Balkan leader is either essential or immortal, that Balkan factions cannot leverage their “victimhood” into unrealistic political gains, and that America will not care more about peace in the region than those who live there. While the odds of success for this approach may be small, they can hardly be worse than the present “script” with no end. Indeed, a genuine political solution – one where Balkan minds are truly focused, and that no Balkan faction can wriggle out from under – will be less dependent on peacekeepers on the ground.

* Second, America is not doomed to having to deal with the Balkans forever. The failure of a comprehensive approach would mean only we return the matter to E.U. hands, without further U.S. political or military obligation. Let all the parties contemplate that possibility before they too-quickly reject a regionwide effort.

Courting Danger: What’s Wrong with the International Criminal Court

By John R. Bolton

The United States has many alternative foreign policy instruments to utilize that are fully consistent with our national interests, leaving the International Criminal Court to the obscurity it so richly deserves.

Advocates of a permanent international court to try perpetrators of war crimes and other “crimes against humanity” achieved a major success in July 1997, with the adoption of a multilateral agreement called “the Statute of Rome.” This treaty will enter into force after ratification by sixty states (which is expected to occur in 1999 or soon thereafter), creating the first new global juridical institution since the International Court of Justice (ICJ) in 1945. In the eyes of its supporters, the nascent International Criminal Court (ICC) is simply an overdue addition to the family of international organizations, an evolutionary step up from the Nuremberg tribunal, and the next logical institutional development over the ad hoc war crimes courts in Bosnia and Rwanda.

On the surface, this logic is straightforward. Through the Genocide Convention of 1948, the four Geneva Conventions of 1949, and subsequent agreements, many of the “principles” of Nuremberg have been adopted in international treaties. The Cold War, however, essentially froze any prospect that the United Nations could serve as a useful vehicle for the creation of new institutions to “enforce” these conventions. Until the Security Council created the Bosnia tribunal in 1993, and a copy for Rwanda shortly thereafter, there were no international war crimes courts. Only the sporadic use of national judicial mechanisms existed, and more often than not these legal systems were either unavailable to the victims of war crimes and crimes against humanity, or were deemed inadequate afterthoughts. The ICJ, although popularly known as “the World Court”, has jurisdiction only over disputes between states, not the adjudication of individual guilt or innocence for violations of international codes of conduct.

With the fading of the Cold War, and particularly with the inauguration of the Clinton administration, however, the International Law Commission resumed serious discussions about the creation of a permanent international criminal court, moving in 1994 to a Preparatory Committee established by the General Assembly. This Committee (essentially a committee of the whole General Assembly) made the final preparations for the Rome Conference in the summer of 1998.

The product of the Conference–the Statute of Rome–establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. Substantively, the Statute confers jurisdiction on the ICC over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

“Genocide” is defined essentially as in the original Genocide Convention of 1948, and prohibits acts intended to destroy national or ethnic groups (Article 6 of the Rome Statute). “Crimes against humanity” are broadly defined to prohibit “widespread or systematic” attacks against civilians that result in murder, enslavement, torture, rape, persecution, enforced disappearances, apartheid, and other enumerated offenses (Article 7). Prohibited “war crimes” include acts “committed as a part of a plan or policy” such as: violations of the four Geneva Conventions; attacks against civilian populations and objects or humanitarian personnel or installations; using weapons that cause superfluous injury or unnecessary suffering; outrages upon personal dignity; starvation as a method of warfare; using civilians as human shields; and a variety of other offenses (Article 8). The “crime of aggression”, although declared criminal, is not defined, and the ICC’s jurisdiction will not actually attach until the states party to the Statute of Rome agree on a definition pursuant to the Statute’s amendatory articles.

Organizationally, the Statute creates an International Criminal Court of eighteen justices to be selected by the treaty parties, and elaborates the Court’s structures and procedures. Judges on the Court must reflect “the principal legal systems of the world” and an “equitable geographical representation.” Unlike the ICJ, the Court’s jurisdiction is “automatic”, applicable to individuals accused of crimes under the Statute, in many cases regardless of whether their governments have ratified it (Article 25). Moreover, the Court’s jurisdiction includes not only those who actually commit offenses, but also commanders or persons who ordered their actions; who knew or should have known that crimes were about to be committed; or who failed to exercise proper control over subordinates, including heads of state or government and members of parliaments (Articles 27 and 28). Those convicted are subject to imprisonment and fines, but there is no provision for the death penalty (Article 77).

A particularly important new institution is the Office of the Prosecutor, which “shall act independently as a separate organ of the Court” (Article 42). The Prosecutor, elected on a secret ballot by an absolute majority of the parties, is responsible for conducting investigations and prosecutions before the Court; no member of the Prosecutor’s staff may accept instructions from any outside source. The Prosecutor may initiate investigations based on referrals by those states party to the Statute, or on the basis of information which he or she otherwise obtains. Although the Security Council may refer a matter to the ICC, or may order it to cease a pending investigation, there is no requirement that the Council play any role at all in the ICC’s work (Article 16).

Described in these terms, one might assume that the ICC is simply a further step in the orderly march toward the international rule of law and the peaceful settlement of international disputes, sought since time immemorial. Why, then, did the Clinton administration–a principal moving force to create a permanent war crimes court in the five years before the Rome Conference–find itself, to its dismay, unable even to sign the Statute, let alone propose its ratification by the Senate? Why was the United States so isolated from its European allies? What are the prospects for an ICC to which the United States does not belong?

But Whom Will the Hammer Strike?

What happened in Rome is the completely unintended consequence of the administration’s own basic policies, starting in its first days in office. Security Council Resolution 808, creating an international criminal tribunal for Yugoslavia, was adopted on February 22, 1993, just a month after the inauguration. The Rwanda tribunal followed in Security Council Resolution 935 in July 1994. The administration declared these tribunals justifiable on their own merits, and also saw them as building blocks for the ICC. Over two years ago, David J. Scheffer, a confidante of Secretary of State Albright and chief American negotiator on the ICC, wrote: “The ultimate weapon of international judicial intervention would be a permanent international criminal court (ICC). . . . The ad hoc war crimes tribunals and the proposal for a permanent international criminal court are significant steps toward creating the capacity for international judicial intervention. In the civilized world’s box of foreign policy tools, this will be a shiny new hammer to swing in the years ahead.”

But this new hammer–the Court and the Prosecutor–has serious problems of legitimacy. The ICC’s principal difficulty is that its components do not fit into a coherent “constitutional” structure that clearly delineates how laws are made, adjudicated, and enforced, subject to popular accountability and structured to protect liberty. Instead, the Court and the Prosecutor are simply “out there” in the international system, ready to start functioning when the Statute of Rome comes into effect. This approach is inconsistent with American standards of constitutional order, and is, in fact, a stealth approach to eroding constitutionalism.

This difficulty stems from the authority purportedly vested in the ICC to create authority outside of (and superior to) the U.S. Constitution, and to inhibit the full constitutional autonomy of all three branches of the U.S. government–and, indeed, of all states party to the Statute. ICC advocates rarely assert publicly that this result is central to their stated goals, but it must be for the Court and Prosecutor to be completely effective. And it is for this reason that, whether strong or weak in its actual operations, the ICC has unacceptable consequences for the United States.

The Court’s legitimacy problems are two-fold, substantive and structural. As to the former, the ICC’s authority is vague and excessively elastic. This is, most emphatically, not a court of limited jurisdiction. Even the meaning of genocide, the oldest codified among the three crimes specified in the Statute of Rome, is not clear. The ICC’s creation shows graphically all of the inadequacies of how “international law” is created.

The U.S. Senate, for example, could not accept the Statute’s definition of genocide unless it is prepared to reverse the position it took in February 1986 in approving the Genocide Convention, when it attached two reservations, five understandings, and one declaration. One understanding, intended to protect American servicemen and women, provides that “. . . acts in the course of armed conflicts committed without the specific intent [required by the Convention] are not sufficient to constitute genocide as defined by this Convention.” Another provides that: “. . . with regard to the reference to an international penal tribunal in article VI of the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.”

By contrast, Article 120 of the Statute of Rome provides explicitly that “No reservations may be made to this Statute.” Thus confronted with a definition of “genocide” that ignores existing American reservations to the underlying Genocide Convention, the Senate could not attach these reservations (or others) to its ratification of the Statute. Stripped of the reservation power, the United States would risk expansive and mischievous definitional interpretations by a politically motivated Court. Indeed, the “no reservations” clause appears obviously directed against the U.S. Senate, and it is a treaty provision we should never agree to.

Much of the media attention to the American negotiating position on the ICC concentrated on the Pentagon’s fears for American peacekeepers stationed around the world. As real as those risks may be, however, the main concern is not that the Prosecutor will indict the isolated U.S. soldiers who may violate our own laws and values, and their own military training and doctrine, by allegedly committing a war crime. The main concern should be for the president, the cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the potential targets of the politically unaccountable Prosecutor created in Rome.

The Statute of Rome’s other two offenses (war crimes and crimes against humanity) are even more vaguely defined, to the point that an activist Court and Prosecutor can broaden the Statute’s language essentially without limit. For example, the ICC Statute’s definition of “war crimes” includes: “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; [and] intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. . . .”

A fair reading of these provisions leaves one unable to answer with confidence whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II. Indeed, if anything, a straightforward reading of the language probably indicates that the Court would find the United States guilty. A fortiori, these provisions seem to imply that the United States would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki.

It is precisely this kind of risk that has led the U.S. Supreme Court to invalidate criminal statutes that fail to define exactly what they prohibit under the “void for vagueness” doctrine. “Void for vagueness” is a peculiarly American invention, which is unfortunate because the ICC’s list of ambiguities goes on and on. Perhaps the most intriguing is the prohibition in subparagraph (p) against “committing outrages upon personal dignity, in particular humiliating and degrading treatment.” Were the problems with the Statute of Rome not so gravely serious, one could imagine this provision as the subject of endless efforts at humor. The definition of “crimes against humanity” includes the catch-all phrase “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” How will this phrase be interpreted? Who will advise our president that he is unambiguously safe from the retroactive imposition of criminal liability if he guesses wrong on “inhumane acts”? Is even a defensive use of nuclear weapons an “inhumane act”?

We are nowhere near the end of the list of prospective “crimes” that can be added to the Statute. Many were suggested at Rome and commanded wide support from participating nations. Most popular was the crime of “aggression”, which, as noted, was included in the Statute but not defined. Although frequently easy to identify, “aggression” can at times be something in the eye of the beholder. Thus, Israel justifiably feared in Rome that its pre-emptive strike in the Six-Day War almost certainly would have provoked a proceeding against top Israeli officials had the Statute been in effect in June 1967. Moreover, there is no doubt that Israel will be the target of complaint concerning conditions and practices by the Israeli military in the West Bank and Gaza. The United States, with continuous bipartisan support for many years, has attempted to minimize the disruptive role that the United Nations has all too often played in the Middle East peace process. As if that were not difficult enough, we now face the prospect of the Prosecutor and the Court interjecting themselves into extremely delicate matters at inappropriate times. Israel, therefore, was one of the few governments that voted with the United States against the Statute.

Coincidentally, the United States has had its own considerable experience in the past two decades with the concept of “independent counsels.” It is an experience that strongly argues against repetition in an international treaty. Simply launching massive criminal investigations can have an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious still, a zealous independent prosecutor can have a dramatic impact just by calling witnesses and gathering documents, without ever bringing formal charges.

The fundamental problem, however, with the latitude of the Court’s interpretative authority stems from the decentralized and unaccountable way in which “international law”, and particularly customary international law, evolves. Thus, Japan’s Permanent UN Representative said approvingly, “The war crimes which are considered to have become part of customary international law should also be included, while crimes which cannot be considered as having been crystallized into part of customary international law should be outside the scope of the Court.”

This statement expresses cogently the notion that customary international law evolves, or “crystallizes.” It is another of those international law phenomena that just happens “out there”, among academics and NGO activists. While the historical understanding of customary international law was that it evolved from the practices of nation-states over long years of development, today theorists write approvingly of “spontaneous customary international law” that the cognoscenti discover almost overnight. If this is where the ICC moves us, there is serious danger ahead.

But even beyond this risk is the larger agenda of many ICC supporters, invoking the nearly endless articulation of “international law” that continues inexorably to reduce the international discretion and flexibility of nation-states, and the United States in particular. In judging the Statute of Rome, we should not be misled by examining simply the substantive crimes contained in the final document. We have been put on very clear notice that this list is illustrative only, and just a start.

As troubling as the ICC’s substantive and jurisdictional problems are, the problems raised by the Statute’s main structures–the Court and the Prosecutor–are still worse. We are not considering a relatively passive court such as the ICJ, which can adjudicate only with the consent of the parties, or when the Security Council or the General Assembly asks for an advisory opinion. The Prosecutor is a powerful element of executive power, namely, the power of law enforcement. Never before has the United States been asked to place any of that power outside of the complete control of our national government.

Indeed, the supposed “independence” of the Prosecutor and the Court from “political” pressures (such as the Security Council) should be more a source of concern for the United States than an element of protection. “Independent” bodies in the UN system have often demonstrated themselves to be more highly politicized than some of the explicitly political organs, UNESCO and the ILO being cases in point. Political accountability, by contrast, which is almost totally absent from the ICC scheme, would have been a real protection. Instead, we now face the prospect, as “public choice” analysis would predict, that the ICC will be “captured” not by governments but by NGOs and others with narrow special interests, and the time to pursue them.

The American concept of the separation of powers reflects the settled belief that liberty is best protected when, to the maximum extent possible, the various authorities legitimately exercised by government are placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely their prerogative, and substantially explains why they are more comfortable with the ICC’s structure, which so closely melds prosecutorial and judicial functions. They may be able to support such an approach, but we should not.

In addition, our Constitution provides that the exercise of executive power is rendered accountable to the citizenry in two ways. First, the law enforcement power is exercised only through an elected president. The president is constitutionally charged (Article II, Section 3) with the responsibility to “take Care that the Laws be faithfully executed”, and the constitutional authority of the actual law enforcers stems directly from the only elected executive official. Second, Congress, all of whose members are popularly elected, exercises significant influence and oversight, both through its statute-making authority and through the appropriations process.

In European parliamentary systems, these sorts of political checks are either greatly attenuated or entirely absent, just as with structures such as the Court and Prosecutor created in Rome. They are accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected or unelected, in the Statute of Rome. The Prosecutor, and his or her as yet undefined investigatory, arresting, and detaining apparatus, is answerable only to the Court, and then only partially. The Europeans may be comfortable with such a system, but that is one reason why they are Europeans and we are not.

By long-standing American principles, the ICC’s structure utterly fails to provide sufficient accountability to warrant vesting the Prosecutor with the Statute’s enormous power of law enforcement. Political accountability is utterly different from “politicization”, which all agree should form no part of the decisions of either the Prosecutor or the Court. Today, however, the ICC has almost no political accountability and carries an enormous risk of politicization. This condition has little to do with our fears of isolated prosecutions of individual American military personnel around the world. It has everything to do with the American fear of unchecked, unaccountable power, and explains why America properly stood apart in Rome from Europe and Canada.

The Real International Interests at Stake

Beyond the particular American interests adversely affected by the ICC, we can and should worry about the more general errors of the ICC’s supporters that will affect all nations. Thus, although the gravest danger from the American perspective is that the ICC will be overbearing and unaccountable, there is an at least equally likely possibility that, in the world at large, the new institution will be powerless and ineffectual. While this may sound contradictory, the ICC is ironically one of those rare creations that may be simultaneously dangerous and weak because its intellectual underpinnings are so erroneous or inadequate in so many respects.

The most basic error is the belief that the ICC will have a substantial, indeed decisive, deterrent effect against the possible perpetration of heinous crimes against humanity. Ironically, ICC proponents now criticize Nuremberg as an inadequate, ex post facto response to such crimes, and argue instead for the deterrent value of a permanent Court and Prosecutor.

Rarely if ever has so sweeping a legal proposal had so little empirical evidence to support it. The evidence demonstrates instead that the Court and the Prosecutor will not achieve their central goal because they do not, cannot, and should not have sufficient authority in the real world.

Behind the optimistic rhetoric, ICC proponents have not a shred of evidence supporting their deterrence theories. In fact, they fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures. No one seriously disputes that the barbarous actions about which ICC supporters complain are unacceptable, but those supporters make a fundamental error in trying to transform matters of power and force into matters of law. Misunderstanding the appropriate roles of force, diplomacy, and power in the world is not just bad analysis, but bad and potentially dangerous policy.

Recent history is filled with cases where even strong military force or the threat of force failed to deter aggression or gross abuses of human rights. ICC proponents concede as much when they cite cases where the “world community” failed to pay adequate attention, or failed to intervene in a sufficiently timely fashion to prevent genocide or other crimes against humanity. The new Court and Prosecutor, it is said, will now guarantee against similar failures.

But this is fanciful. Deterrence ultimately depends on perceived effectiveness, and the ICC is most unlikely to have that. Even if administratively competent, the ICC’s authority is likely to be far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to intervene militarily to prevent crimes against humanity as they were happening, why will a potential perpetrator be deterred by the mere possibility of future legal action? A weak and distant Court will have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against humanity. Why should anyone imagine that bewigged judges in the Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the truly weak and vulnerable is a cruel joke.

Beyond the predictive issue of deterrence, it is by no means clear that “justice” is everywhere and always consistent with the attainable political resolution of serious disputes, whether between or within states. It may be, or it may not be. Unfortunately for moralists and legal theoreticians, human conflict teaches that policymakers must often make trade-offs among inconsistent objectives. This can be a painful realization, confronting us as it does with the irritating facts of human complexity, contradiction, and imperfection. Some elect to ignore these troubling intrusions of reality, but those who would ponder the ICC’s practical merits do not have that option.

The existing international record of adjudication is hardly encouraging. The ICC’s framers tacitly recognize this problem because, with virtually no debate in Rome, and with the full endorsement of the Clinton administration, they created the ICC outside of the United Nations system. So visibly separating the ICC from the International Court of Justice tacitly acknowledges that the ICJ has failed to garner the legitimacy sought by its founders in 1945. In some respects, this is more than ironic, because much of what was said then about the ICJ anticipates recent claims by ICC supporters. These touching sentiments were not borne out in practice for the ICJ, which has been largely ineffective when invoked and more often ignored in significant international disputes. Indeed, the United States withdrew from the mandatory jurisdiction of the ICJ after its erroneous Nicaragua decisions, and it has even lower public legitimacy here than the rest of the UN.

Among the several reasons why the ICJ is held in such low repute, and what is admitted privately in international circles, is the highly politicized nature of its decisions. Although ICJ judges supposedly function independently of their governments, their election by the UN General Assembly is highly politicized, involving horse trading among and within the UN’s several political groupings. Once elected, the judges typically vote along predictable national lines except in the most innocuous of cases. Thus, the ICJ’s failure to generate widespread international respect and legitimacy on “civil” matters may well provide the best explanation of why the new “criminal” court was established outside the UN.

The ICJ’s failure is a continuing sore point for ICC supporters, one of whom, Kenneth Roth, recently acknowledged that much will depend “on the character and professionalism of the ICC prosecutor and judges.” Roth cites the skill and integrity of several jurists serving on the Bosnia and Rwanda tribunals, and concludes that “there is every reason to believe that the ICC will be run by jurists of comparable statute.” Utterly absent from Roth’s justification is even a mention of the judges of the ICJ during more than fifty years of existence, though it is surely an institution more comparable to a permanent ICC than are the ad hoc Bosnia and Rwanda courts. Roth’s silence speaks for itself.

Although supposedly a protection for the ICC’s independence, the provisions for the “automatic jurisdiction” of the Court and the Prosecutor are unacceptably broad. They constitute a clear break from the basic premise of the ICJ that there is no jurisdiction without the consent of the state parties. Because parties to the ICC may refer alleged crimes to the Prosecutor, we can virtually guarantee that some will, from the very outset, seek to use the Court for political purposes.

In fact, the Rome Conference substantially minimized the Security Council’s role in ICC affairs. The limited remaining role for the Security Council in the ICC is found in Article 16 of the Statute of Rome. Under that article, the Prosecutor is free to investigate, indict, and try before the Court completely at will, unless and until the Security Council acts to stop him. In requiring an affirmative vote of the Council to stop a case, the Statute shifts the balance of authority from the Council to the ICC. Moreover, a veto by a Permanent Member of such a restraining Council resolution leaves the ICC completely unsupervised. It seriously undercuts the role of the five Permanent Members of the Council, and radically dilutes their veto power. This was precisely the objective of the ICC’s proponents.

Since the UN Charter charges the Council with “primary responsibility for the maintenance of international peace and security”, it is more than passingly strange that the Council and the ICC are now to operate almost independently of one another. Strange, that is, only if one is unfamiliar with the agenda of many governments and non-governmental organizations supporting the ICC, whose agenda has for years included a downgrading of the Security Council and especially the weakening of the veto power of its five Permanent Members.

This attempted marginalization of the Security Council is a fundamental new problem created by the ICC that will have a tangible and highly detrimental impact on the conduct of U.S. foreign policy. The Council now risks having the ICC interfere in its ongoing work, with all of the attendant confusion between the appropriate roles of law, politics, and power in settling international disputes.

Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication contemplated by the ICC. One contemporary alternative is South Africa’s Truth and Reconciliation Commission. In the aftermath of apartheid, the new government faced the difficult task of establishing and legitimizing truly democratic governmental institutions while dealing simultaneously with earlier crimes. One option would have been widespread prosecutions against those who perpetrated human rights abuses, but the new government chose a different model. Under the Commission’s charter, those who committed human rights abuses could come before it to confess past misdeeds. Assuming they confessed truthfully, the Commission could in effect pardon them from prosecution. This approach was intended to make public more of the truth of the apartheid regime in the most credible fashion, to elicit thereby admissions of guilt, and then to permit society to move ahead without the continual opening of old wounds that trials, appeals, and endless recriminations might bring.

I do not argue that the South African approach should be followed everywhere, or even necessarily that it is the correct solution for South Africa. But it is radically different from that contemplated by the ICC, which seeks vindication, punishment, and retribution as its goals, as is the case for most criminal law enforcement institutions. The clear point is that, in some disputes, neither retribution nor complete truth-telling is the best objective. In many former communist countries, for example, citizens are still wrestling with the handling of secret police activities of the now defunct regimes. So extensive was the informing, spying, and compromising in some societies that a tacit decision has been made that the complete opening of secret police and Communist Party files will either not occur, or will happen with exquisite slowness over a very long period. In effect, these societies have chosen “amnesia” because it is simply too difficult for them to sort out relative degrees of past wrongs, and because of their desire to move ahead.

One need not agree with these decisions to have at least some respect for the complexity of the moral and political problems these societies face. Only those completely certain of their own moral standing, and utterly confident in their ability to judge the conduct of others in difficult circumstances, can reject the amnesia alternative out of hand. Our experience should counsel for a prudent approach that does not insist on international adjudication even over a course that the parties to a dispute might themselves agree upon. Indeed, with a permanent ICC, one can predict that one or more disputants might well invoke its jurisdiction at a selfishly opportune moment, and thus, ironically, make an ultimate settlement of their dispute more complicated or less likely.

The recent experience of Chile’s General Pinochet compellingly demonstrates this possibility. Chile made painful choices to restore democracy in 1990 after seventeen years of military rule. Many, in Chile and elsewhere, felt that the general was treated too leniently. This is a legitimate view, but so too is its opposite, which asserts the primacy of returning the military to its barracks. Chileans made their choice and have lived with it. But for a self-selected Spanish official, it was not good enough. He sought to extradite Pinochet (during a visit for medical treatment, and under diplomatic status) from the United Kingdom for a trial in Spain on charges of, among other things, genocide. However this particular affair ends, it demonstrates the moral and political arrogance that will likely permeate the ICC, contributing materially to its potential for damage.

Another alternative, of course, is for the parties themselves to try their own alleged war criminals. ICC proponents usually ignore or overlook this possibility, either because it is inconvenient to their objectives, or because it utilizes national judicial systems and agreements among (or within) nation-states to implement effectively. One important example involves Cambodia. Although Khmer Rouge genocide is frequently offered as an example of why the ICC is needed, its proponents never explain why the Cambodians should not themselves adjudicate alleged war crimes.

Cambodia is again split by intense political differences. As before, the factions seek to internationalize their dispute, each hoping that external political intervention, including the idea of an international war crimes tribunal, will tip the domestic political scales in its favor. Instead, Cambodians should judge their own criminals. There is a strong argument that to obtain the full cathartic benefit of war crimes trials, a nation must be willing to take on the responsibility of judging its own. To create an international tribunal for the task implies immaturity on the part of Cambodians and paternalism on the part of the international community. Repeated interventions by global powers are no substitute for the Cambodians coming to terms with themselves.

ICC proponents frequently assert that the histories of the Bosnia and Rwanda tribunals established by the Security Council demonstrate why a permanent ICC is necessary. The actual evidence proves precisely the contrary: it is wildly premature to extrapolate from the limited and highly unsatisfactory experience with ad hoc tribunals to a permanent Court and Prosecutor.

For Bosnia, as noted above, the ad hoc court was established before the Dayton Agreement, and serves as an example of how a decision to detach war crimes from the underlying political reality advances neither the political resolution of a crisis nor the goal of punishing war criminals. Even today, after Dayton, the tribunal cannot achieve its declared objectives. ICC proponents complain about the lack of NATO resolve in apprehending alleged war criminals. But if not in Bosnia, where? If the political will to risk the lives of troops to apprehend indicted war criminals there does not exist, where will it suddenly spring to life on behalf of the ICC?

It is by no means clear that even the tribunal’s “success” would complement or advance the political goals of a free and independent Bosnia, the expiation of wartime hostilities, or reconciliation among the Bosnian factions. In Bosnia, there are no clear communal winners or losers. Indeed, in many respects the war in Bosnia is no more over than it is in the rest of the former Yugoslavia, such as Kosovo. Thus, there is no agreement, either among the Bosnian factions or among the external intervening powers, about how the war crimes tribunal fits into the overall political dispute or its potential resolution. Bosnia shows that insisting on legal process as a higher priority than a basic political resolution can adversely affect both the legal and political sides of the equation.

In short, and very much unlike Nuremberg, much of the Yugoslav war crimes process seems to be about score settling rather than a more disinterested search for justice that will contribute to political reconciliation. If one side–most likely the Serbs–believes strongly that it is being unfairly treated, then the “search for justice” will have harmed Bosnian national reconciliation. This is a case where it only takes one to tango. Outside observers might disagree with this assessment, but outside observers do not live in Bosnia.

And again, the option of Bosnians trying their own war criminals is not even seriously discussed. One reason, of course, is that at the time of Dayton the Hague tribunal was already a fact of life that some parties did not want to modify. More troubling is that Dayton did not really accomplish much more than a de facto partition of Bosnia. Bluntly stated, if Bosnian Serbs, Croats, and Muslims had reached a true meeting of minds at Dayton, they would have resolved the question of war crimes allegations. That they did not is a straightforward admission that Dayton simply papered over, and almost certainly only temporarily, the underlying causes of past and future conflicts.

The experience of the Rwanda war crimes tribunal is even more discouraging. Widespread corruption and mismanagement in that tribunal’s affairs have led many simply to hope that it expires quietly before doing more damage. At least as troubling, however, is the clear impression many have that score settling among Hutus and Tutsis–war by other means–is the principal focus of the Rwanda tribunal. Of course it is.

Consider also Iraq. Its August 1990 invasion of Kuwait unquestionably qualifies as an act of aggression, and there is little debate that the Iraqis committed any number of acts against Kuwaitis and others that would be illegal under the Statute of Rome. Yet, by conscious decision, neither the United States nor any other power, including Kuwait, has seriously sought to create a war crimes tribunal for the Persian Gulf War, and the reasons are clear: this is a case to abjure war crimes prosecutions because the appropriate circumstances are not yet present.

In the first place, the victorious Gulf coalition never had as a goal the unconditional surrender of Iraq or Saddam Hussein’s removal from power. Moreover, the key defendants from Saddam on down are not in custody, nor is potentially dispositive documentary and physical evidence, which is still in the hands of the Iraqi government and military. Prosecuting the alleged war criminals in absentia is therefore the only possibility, and this approach raises enormous potential risks. Specifically, in absentia prosecutions could give rise to “Versailles syndrome” feelings of injustice and persecution by the West, both among Iraqis and generally throughout the Arab world. What Iraq really needs is a new government that can decide on justice for Saddam and his henchmen as an element of that country’s own internal political maturation.

ICC advocates defend the Statute of Rome by pointing to the doctrine of “complementarity” (deference to national judicial systems) embodied in the Statute. “Complementarity”, like so much else connected with the ICC, is simply an assertion, utterly unproven and untested. If complementarity has any real substance, it argues against creating the ICC in the first place. If most national judicial systems are capable of addressing the substantive crimes the Statute proscribes, then that demonstrates why, at most, ad hoc international tribunals are necessary. Indeed, it is precisely the judicial systems that the ICC would likely supplant (such as in Bosnia or, possibly, in Cambodia) where the international effort should be to encourage the warring parties to resolve questions of criminality as part of a comprehensive solution to their disagreements. Removing key elements of the dispute, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together.

Next Steps

Rather than walk away from the wreckage of its policy in Rome, the Clinton administration is actively working to recreate its shattered strategy to bring the United States into the ICC. It does so because its commitment to the ICC resides at the core of its foreign policy, and because of the intense criticism from the administration’s erstwhile supporters, which may shock those unfamiliar with the Byzantine politics of international human rights. Those scorned demand that Clinton sign the Statute of Rome so that it will “put America back in the camp of the friends, rather than the enemies, of human rights.” This is true Puritanism: failure to support the ICC is proof of apostasy on human rights generally.

In response, the administration will likely take several steps. First, it will continue to negotiate with signatories in hope of obtaining sufficient amendments to allow the United States to sign on. Second, it will probably support transferring the work of the Bosnia and Rwanda tribunals to the ICC, thus triggering financial support from the UN (and therefore from its principal funder, the United States). Third, the administration will attempt to have the Security Council refer other matters (such as Cambodia) to the ICC, rather than have them come from state referrals or from the Prosecutor, thus also triggering the UN funding obligation. Fourth, they will seek to provide “temporary” or “transitional” assistance to the ICC, which, in the ways of all bureaucracies, may endure forever.

Given that we face two years before having even a prospect of a president who would resolutely oppose the ICC, we can only assume that the Statute of Rome will enter into force before then. Nonetheless, we should not assume that others, especially those who will pay the bills in our absence, will rush to make it fully functioning. Having done the “right thing” in creating the ICC, many European governments, which have more than a passing acquaintance with cynicism, may not rush to make it fully operational. Nor will they necessarily hasten to risk the catastrophic consequences of attempting to assert jurisdiction over an American citizen, interfere in Security Council matters, or otherwise obstruct U.S. foreign policy.

In fact, whether the ICC survives and flourishes depends in large measure on the United States. We should therefore ignore it in our official posture, and attempt to isolate it through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources. U.S. policy toward the ICC should be, in a phrase familiar to President Clinton, “Three No’s”: no financial support, directly or indirectly; no collaboration; and no further negotiations with other governments to “improve” it. Such a policy cannot entirely eliminate the risks posed by the ICC, but it can go a long way in that direction. Certainly, members of Congress should press this view on the Clinton administration.

The plain fact is that additional “fixes” over time to the ICC will not alter its multiple inherent defects. The United States has many alternative foreign policy instruments to utilize that are fully consistent with our national interests, leaving the ICC to the obscurity it so richly deserves. Signatories of the Statute of Rome have created an ICC to their liking, and they should live with it. We should not.