Yugoslavia and the Paradox of International Human Rights Law

The problem with these legalistic arguments is that NATO itself is flouting international law. The NATO operation shows how the efficacy of international human rights law depends on its selective application. NATO is violating international law in order to uphold it, and NATO would not be upholding international law if it were subject to it.

Most egregiously, NATO has violated the United Nations Charter. In large part out of concern for human rights, the charter prohibits one nation's use of force against another unless the Security Council authorizes the attack or unless the attack is a self-defensive response to armed aggression across recognized borders. NATO's attack satisfies neither precondition. The illegality of NATO's attack, combined with NATO's destruction of civilian targets, might also constitute war crimes.

Yugoslavia is pressing many of these legal claims before the International Court of Justice. In addition, as the UN's chief human rights officer recently noted, NATO's possible war crimes fall within the jurisdiction of the same war crimes tribunal that might indict Mr. Milosevic.

NATO and US officials who rail against the illegality of Yugoslavia's atrocities in Kosovo scoff at claims that NATO's bombing might violate international law. These officials confuse the motive for NATO's actions with the legality of such actions. NATO's intervention was motivated in part by humanitarian concerns, and in part by the need to resolve a crisis of credibility and purpose. But NATO' s motives, benign or not, are no defense against illegality.

None of this is to suggest that NATO's illegal acts will be remedied by the institutions of international law. International Court of Justice decisions are frequently ignored, especially by the United States. The war crimes tribunal in The Hague, established and dominated by western countries, will never indict, much less convict, a NATO official. And no country is likely to bomb a NATO country to redress NATO violations of international law in the Balkans. In short, NATO is immune from the very international laws it purports to enforce.

NATO's opportunistic invocation of international human rights law is but one example of the broader double standard that characterizes this law. The United States is the worst perpetrator of this double standard. No nation on earth more aggressively enforces international human rights law against other countries. And no nation on earth more aggressively resists the application of international human rights law to itself.

The United States stands nearly alone in refusing to join the Land Mine Treaty, the Rights of the Child Convention, or the International Criminal Court. When it does ratify human rights treaties, it renders them inapplicable to US officials. And though the United States invokes international human rights institutions when doing so suits its purposes, it renounces these institutions when they attempt to assert jurisdiction over the United States.

This human rights law double standard can be defended up to a point. The US provides extraordinary (though imperfect) human rights protections within its borders in virtue of its domestic legal system. So its failure to apply international human rights law in its domestic sphere makes little practical difference to the rights available there. The United States resists application of human rights law to its activities abroad because it has unique human rights enforcement obligations, and thus potential exposure to the strictures of human rights law.

That said, the United States' opportunistic use of human rights law rhetoric - on full display in the Balkans conflict - still seems hypocritical. The double standard that underlies this hypocrisy, however, is an inevitable feature of international human rights law.

International law is often criticized as toothless because it lacks a dependable centralized enforcement mechanism. Some aspects of international law - for example, principles of diplomatic immunity or international communications standards - have little need for such a sanctioning authority. These rules provide reciprocal benefits and are thus largely self-enforcing.

Not so with international human rights law. If one nation - say, Yugoslavia - is otherwise inclined to abuse its citizens, it will perceive no reciprocal benefit from compliance with an international norm that requires greater respect for human rights. A nation like Yugoslavia is unlikely to comply with international human rights law unless other nations - say, NATO - sanction non-compliance.

Such sanctions are very costly to impose. This is why most violations of international human rights law go without redress. It is also why the rare enforcement of human rights law that we do see tends to conform to the enforcing nation's political interests. For example, the US government intervenes in Haiti to avoid a flood of refugees and imposes sanctions on Cuba because of domestic political benefits. But it does not sanction Turkey or China for their human rights abuses, because such sanctions are strategically too costly.

International human rights law thus depends on powerful nations for enforcement, which in turn means that powerful nations are not subject to this law when they violate it. Whether the illegality of human rights enforcement actions ultimately matters will depend on the success of these actions. At this point, it is far from obvious that the humanitarian benefits of NATO's intervention will outweigh the costs of the intervention - costs measured in lives lost as a result of NATO acts and in the larger danger that the intervention poses to international order.

 By Jack GOLDSMITH, professor of law at the University of Chicago Copyright: Project Syndicate, May 1999