Published Sunday, April 4, 1999

Commentary: NATO action unwisely undercuts U.N.

Peter Erlinder

No matter what the outcome of the NATO bombing campaign, the fundamental architecture of
international law, centered on the United Nations during the 50 years since World War II, has suffered a
severe blow from which it may never recover.

The delicate, and sometimes contradictory, balance between "national sovereignty," upon which the U.N.
Charter is premised, and "the human rights of individuals against oppressive governments," articulated in
the Universal Declaration of Human Rights, has been altered forever. The result is likely to be more
international chaos, war crimes and acts of genocide, and the American people will be asked to pay the
price for generations to come.

Under the United Nations Charter and subsequent U.N. resolutions, the use of force is banned unless
specifically authorized by the Security Council, after the Security Council has determined that peaceful
methods have failed, or when "self-defense" is required in the case of an armed attack. It is a clear
violation of fundamental United Nations principles for one sovereign member state to attack another,
even for "humanitarian purposes."

While this may seem to be an inhumane technicality in the face of apparent acts of brutality, like those
alleged in Kosovo, there are important historical reasons for this seemingly irrational respect for
national sovereignty. One of the important lessons of WWII was that militarily powerful states can use
"humanitarian intervention" to justify military action that expands international conflicts and increases
the suffering of innocent civilians.

Germany announced that it was "protecting the rights of oppressed Germans" when it annexed part of
Czechoslovakia. Mussolini invaded Ethiopia to "liberate and civilize" the Ethiopian people. The Japanese
invaded Manchuria to "defend the Manchurians from Chinese bandits." When the United Nations was
founded in 1945, it was well understood that claims of humanitarian intervention were not always
humane.

Respect for national sovereignty was the mechanism that the U.N. Charter adopted to prevent powerful
nations from using "humanitarian intervention" as a guise for military adventurism and imperialism. It is
the cornerstone of all international legal systems.

This respect for national sovereignty, however, does not mean that the United Nations and international
law holds national sovereignty above all else, and ignores the plight of those oppressed by their own
governments. The Nazi War Crimes Tribunals made clear that brutal leaders cannot use "national
sovereignty" as a defense for genocide and other crimes against humanity.

In 1948 the United Nations Universal Declaration of Human Rights set out specific rights that all
governments were obliged to respect. The United Nations also passed other resolutions outlawing
politically motivated rape and other crimes against humanity.

The recently established War Crimes Tribunals, set up in the aftermath of acts of genocide in Rwanda
and Bosnia, was the first step to creating international juridical bodies capable of punishing war
criminals and acts of genocide. Under this emerging structure of international human rights law, leaders
like Augusto Pinochet, Slobodan Milosevic or Saddam Hussein can be held liable for war crimes or acts
of genocide, if these U.N. bodies and international legal principles are fully supported by the member
states.

Unfortunately, as the United States has risen to hyperpower status, it has repeatedly undermined the
effectiveness and authority of these international bodies. The United States has economically crippled
the United Nations by refusing to pay more than $1 billion in back dues. It has refused to recognize the
jurisdiction of the World Court when the decisions of that body, such as the decision declaring nuclear
weapons illegal, are contrary to current U.S. policy. The United States also opposed the creation of the
War Crimes Tribunal and has refused to cooperate with its investigations, or with seizing war criminals
under indictment. Now, the NATO bombing has further degraded this emerging international legal
structure.

The world's only remaining superpower has established the principle that, once again, claims of
humanitarian intervention can be used to justify acts of war against a sovereign nation without U.N.
authorization. How this principle might be used to justify U.S. military intervention in the future is
anyone's guess. Should the United States intervene to protect the Kurds from Turkish depredations?
Will it defend the Chechens who are surrounded and oppressed by hostile Russians? What about the
Colombian people being killed in their thousands by government-supported paramilitaries?

Of course, the United States cannot intervene every time a brutal regime oppresses its own people,
because such oppression simply occurs too frequently. It is much more likely that America will only
intervene for "humanitarian reasons" when it serves short-term U.S. policy interests. Even if the United
States could apply the policy of humanitarian intervention evenly, consistently and fairly, the result will
not be a more stable and humane world order.

At the close of the 20th century, the most powerful nation in the history of the world, and its allies, are
establishing the principle that nations with sufficient military power and claims of "humanitarian
purpose" can act independently of the United Nations structure, as long as an even larger military power
does not intervene to stop them. This lesson will not be lost on future local and regional Hitlers, who
have the military means to "liberate" their "oppressed neighbors."

When other countries begin their own "humanitarian interventions" in the next century, the people of the
United States may well come to regret the absence of a strong United Nations. Without the U.N.
structure to rely on, the only alternative for addressing future war crimes and genocide, as well as the
"humanitarian intervention" of other nations, will be ever-escalating and virtually limitless demands on
U.S. military power, including the use of ground troops. Future generations of Americans will pay the
long-term costs of this last great military adventure of the 20th century, no matter what the outcome.

-- Peter Erlinder, a professor at William Mitchell College of Law in St. Paul, is past president of the
National Lawyers Guild.

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