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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Yugoslavia and the Paradox of International Human Rights Law

29 May, 1999 - 00:00

By Jack GOLDSMITH

CHICAGO: NATO's stated reason for bombing Yugoslavia is to enforce international
law prohibitions on war crimes, crimes against humanity, and perhaps even
genocide. United States officials in particular justify NATO's attacks
in legalistic terms. Secretary of State Madeleine Albright maintains that
NATO is bombing "to uphold the law." The US Senate is pressuring President
Clinton to ensure that the war crimes tribunal in The Hague indicts Slobodan
Milosevic. David Scheffer, the US Ambassador for War Crimes, proclaims
NATO's unprecedented enforcement of human rights to be a "watershed" for
international 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


 

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