The Law of Empire

01 December 1999

When the US Senate voted down the Comprehensive Test Ban Treaty (CTBT) in mid-October, the perceived wisdom was that the 'new isolationists' had won the day. But the perceived wisdom was wrong. The right-wing congressional opposition was not retreating from global involvement. Real 'isolationists' would have been busy withdrawing far-flung troops from international deployments and restationing them on the US borders, not just rejecting a particular arms control treaty. They would be pulling back from the US-centered trade webs that criss-cross the globe, not simply trying to limit the power of the World Trade Organization.

It is not isolationism, but a thoroughly interventionist unilateralism that was the driving force behind the CTBT's defeat. Multilateralism - and especially the United Nations - have become the key fall guys in Washington's newest blame games.

It was eminently predictable. Only a few weeks after NATO's spring bombing campaign, US officials were already blaming the United Nations for their own failure to restore anything resembling peace in Kosovo and the rest of Yugoslavia. Months of NATO bombing had failed to stop the ethnic cleansing and expulsions in Kosovo. Instead, it devastated Yugoslavia and shored up support for Slobodan Milosevic. Only then did Washington and its allies grudgingly allow a role for the once-excluded UN, to orchestrate the deal for ending the air war, withdrawing Yugoslav troops, and creating an international protectorate in Kosovo. US strategy was to reject UN decision-making, deny the UN adequate resources, personnel, and authority, and then set it up to take the blame for the messy and violent aftermath of the US-NATO war.

Chairman of the Joint Chiefs of Staff Gen. Henry Shelton and Secretary of Defense William Cohen, testifying before the Senate Armed Services Committee only weeks after the war, sharply condemned the United Nations. We need to put as much pressure as possible on the UN to do more, threatened Cohen. The Committee's chair, Senator John W. Warner, berated the UN because it moves very slowly to assume its responsibilities ('UN Drags Feet in Kosovo, Pentagon Leaders Declare', New York Times, 21 July 1999).

The officials ignored the fact that thanks largely to US and its wealthy allies' miserliness, the UN's High Commissioner for Refugees had so far received only $140 million of the $400 million needed to rebuild homes for the returning Kosovar refugees. The New York Times reported that only 150 police officers of a projected 3,110 member international force are in Kosovo (New York Times, 21 July 1999) and one could almost see the shaking heads of disapproval at the UN's failure. But the real problem was that the entire 3,000+ volunteer force had to be individually recruited and sent to Kosovo by separate governments around the world. Why? Because the US has long prevented the creation of a standing UN rapid reaction or international police force that could, under the direction of the Secretary General, move swiftly and proactively to crisis zones.

The Clinton administration refuses to help rebuild Serbia's bomb-devastated infrastructure so long as Milosevic remains in power, and it is pressuring other NATO members to do the same. So the Albanian Kosovars will eventually receive millions in reconstruction money, while the rest of Serbia gets nothing. With ethnic tensions thus exacerbated, the UN's task will remain even more daunting, and Washington's position will make the UN's failure more likely. Similar inadequacies are already looming over the UN's ambitious $1 billion-plus peacekeeping and nation-building effort in the even more devastated East Timor.

The Clinton administration plays lip service to supporting the UN. It calls for, but fails to effectively mobilize, support for paying overdue UN dues. But it refuses to seriously acknowledge how much it needs the UN for any hope of achieving its claimed goal of a more peaceful world. Instead, it separates the UN from its operative foreign policy, relying instead on unilateral power and only rarely projecting the 'aggressive multilateralism' that was once the official hallmark of early Clintonian diplomacy.

In turning to NATO, a Cold War military alliance, to approve its air war against Yugoslavia instead of placing the issue before the United Nations, the US explicitly violated international law and the UN Charter's requirement that only the Security Council can authorize the use of force. In refusing to allow the UN to send peacekeepers to Dili until after its Indonesian ally grudgingly agreed, Washington followed a longstanding pattern of ignoring UN resolutions ruling Jakarta's occupation of East Timor completely illegal.

In today's world it is clear there may be times when widespread human rights violations, such as those that occurred in East Timor or Kosovo, may indeed necessitate at least the consideration of international intervention within a sovereign state or in a territory illegally occupied by another sovereign state. But only the UN is entitled to make such a grave determinations. Fear of a possible veto by other Security Council members (however exaggerated that fear, given Chinese and Russian dependency on Western economic support) does not give the US, with or without tag-along Britain, the right to conduct an end run around UN primacy in matters of international peace and security. By acting solo, the US trumpets its contempt for other nations.

So what's going on here? Why is the US - including the once relatively multilateralist Clinton administration - leading the charge to discredit and undermine the UN and international law even further, now that NATO's unauthorized war in Yugoslavia is over and the difficult work of rebuilding a shattered East Timor is only beginning?

It's an old story, really. It's the story of a strategically unchallenged dominion, at the apogee of its power and influence, rewriting the global rules for how to manage its empire. A couple thousand years ago Thucydides described how Mylos, the island the Greeks conquered to ensure stability for their Empire's golden age, was invaded and governed according to laws wholly different from those ruling democratic (if slavery-dependent) Athens. So too, the Roman empire. In the last couple hundred years the sun-never-sets-on-us British empire did much the same thing. And now, having achieved once unimaginable heights of military, economic and political power, it's Washington's turn.

The law of empire takes the form of the US exempting itself from treaties and other international agreements that it demands others accept. It is evident in Washington's rejection of the new International Criminal Court, designed to hold individuals accountable for war crimes and genocide. Last year the Clinton administration, through David Scheffer, US Ambassador for War Crimes Issues, reaffirmed the administration's official support for such a court. Scheffer reiterated a position Washington first asserted at the end of the Second World War, when the US fought for individuals to be held personally accountable for crimes against humanity. But when the new Court was approved in July 1998 by 102 nations, the US was among only seven countries voting against - joined by Israel, Libya, China, Iraq, Qatar and Sudan. Why did the US join this odd group in opposing the Court? Because, Scheffer said later, the court places at risk those who shoulder the responsibility for international peace and security (Statement 31 August 1998). Of course there should be an international court for everyone else, said the US cheerleaders, but of course 'responsible' US officials and soldiers should be granted immunity from its jurisdiction.

The law of empire was clear in the US refusal to sign the 1997 convention prohibiting the use of anti-personnel land mines. The rest of the world agreed that the mines, responsible for far more civilian than military deaths, should be outlawed. The campaign that orchestrated the convention was awarded the Nobel Prize for Peace. US officials cheered it on, bemoaning the deaths caused by mines left behind by irresponsible nations. But Washington still demanded that the US be exempt, and be allowed to continue using land mines in Korea's demilitarized zone and around the US naval base at Guantanamo Bay in Cuba. Everyone else should ban land mines, the US agreed, but we are more responsible and we should be the exception.

Washington's unilateralism also shows up in the campaign to protect children in warfare. The 1994 Convention on the Rights of the Child reflects growing international concern about the use of children - through kidnapping, coercion, and lack of economic alternatives - as soldiers or other military workers, servants or slaves. An optional protocol will outlaw all military recruitment of children under the age of 18. The US, while cheerleading for other, narrowly drawn, amendments, is leading the campaign to derail that protocol - because the Pentagon finds it convenient to continue to recruit 17-year-olds into the US military forces. In the meantime, the US remains one of only two countries that have refused to ratify the Convention itself. The other is Somalia.

In Israeli-Palestinian diplomacy, the US has asserted its prerogative to impose on the peace process its own narrow redefinition of international law. Specifically, the US proclaimed by fiat that the only relevant UN resolutions are 242 and 338, calling for the exchange of territory for peace. Thus erased with a wave of Washington's hand are resolutions codifying decades-old international understandings on issues such as the right of Palestinians to return (194) and even the original 1947 partition resolution (181) on which Israel's own international legitimacy rests. Only the US claims the power to dictate the relevance or irrelevance of existing international laws.

And for anyone who believed the CTBT's defeat to be an aberration, keep in mind the 1968 Non-Proliferation Treaty (NPT). Here US exceptionalism was only slightly more subtle. The US not only signed and ratified the NPT, but took the lead 25 years later in orchestrating, through a complex web of bribes and threats, the campaign to permanently extend the Treaty's life. The American opt-out came in the blatant refusal to take seriously its NPT's commitment that the nuclear powers, the US, Russia, Britain, France and China, move seriously towards disarmament - the complete prohibition and thorough destruction of nuclear weapons. Only such a move could justify the rest of the world agreeing through the NPT to forgo nuclear weapons altogether. Yet US diplomats during the 1995 NPT-extension conference called planning to get rid of their nuclear weapons nothing short of ridiculous (Statement by Amb. Thomas Graham, in 'Ambassador Graham on US Policy and the Non-Proliferation Treaty', BASIC Report, British-American Security Information Council, 14 April 1995). As Mexico's representative put it, they insist, as adults to children, that the rest of the world 'do as I say, not as I do (Statement at opening of Conference on Disarmament, Geneva, 31 January 1995).

There are more examples. The US still rejects the 1982 Convention on the Law of the Sea. Although its diplomats had long demanded such a Convention, and played a major role in the years-long onerous negotiations, the Reagan administration refused to sign on. The Convention allows submarines to travel unannounced and without surfacing through and across the world's straits, of far more advantage to the US Navy's global reach than that of other nations, but Washington deemed the Convention insufficiently respectful of potential US mining claims, and refused to accept the jurisdiction of an international mediating body.

Sometimes Washington's law of empire takes the form of undermining the purpose of international laws. The US is a signatory to the 1949 4th Geneva Conventions, but it plays the role of spoiler, undermining the potential of the Conventions to do exactly what they are supposed to do: protect people. The Conventions were designed to shield unarmed civilians from the ravages of war, siege, or occupation. In the UN, everybody - except Israel itself - agrees that the Conventions apply to Israel in the occupied Palestinian territories. That isn't controversial - even the US admits that much, and over the years the US accepted 24 other Security Council resolutions saying so. Those resolutions are supposed to be binding. But in April 1999 the US vetoed two Council resolution calling for an end to Israel's provocative settlement practices, long viewed as violating UN resolutions and the Geneva Conventions. To override the US-driven impasse, members of the European Union and other countries brought the question to the General Assembly where the US has no veto. The Assembly voted overwhelmingly to convene a meeting of the 188 signatories to the Conventions, to discuss Israeli practices in the occupied territories. The US voted against the Assembly resolution too - but much more disturbing was the later US announcement that it was going to, in Vice-President Al Gore's words (on 23 May 1999) work diligently to halt the meeting of the Fourth Geneva Convention .... America will boycott it, and we will urge others to do the same. Given the overwhelming might of US diplomatic, economic and strategic power to coerce other nations, such a threat represents a grave assault on the legitimacy of international law.

(Certainly Washington's claim to superior morality is also undermined by its longstanding refusal to sign or ratify a host of international agreements, including the UN Convention on Economic and Social Rights, the Convention on the Rights of Women, the American Convention on Human Rights of the Organization of American States, and the UN Convention on Economic and Social Rights, the crucial 'other half' of international human rights protection. The 1977 Protocols to the Geneva Conventions, which expand the protections required in times of war, have not been signed either. The US has ratified a few important international agreements, such as the Convention on Civil and Political Rights and the Genocide Convention, but only with great reluctance and after decades of dogged effort by human rights campaigners. However, there is a particularly egregious hypocrisy involved in the US rejection of international legal structures such as the International Criminal Court, the land mines convention and others, in which the US pressures other countries to sign agreements that hold them accountable to global standards which Washington has no intention of meeting.)

And the law of empire is perhaps most clear of all in how the US, the only country in the world with the power to do so, has shifted decision-making on international interventions out of the hands of the United Nations, in favor of illegal reliance on NATO as an authorizing power, and ultimately on unilateral US action.

In 1990 the US, however cynically, promoted the UN as its chosen instrument, orchestrating through bribes and threats and punishments a Security Council vote authorizing Washington's 'coalition' war against Iraq. In the 1992-94 period of escalating crises and failures of international peacekeeping efforts in Bosnia, Somalia, Rwanda and elsewhere, the US continually blamed its own and Western failures on the UN. President Clinton still implies the UN is responsible for the deaths of US Rangers in Somalia during Washington's non-UN authorized, unilateral Pentagon mission in 1993. By 1995, Madeleine Albright openly called the United Nations a tool of American foreign policy (Washington Times, 13 December 1995). And by 1996, as the US continued bombing Iraq, Washington claimed it no longer needed UN resolutions to justify its airstrikes. (The US-British 'no fly zones' established after the Gulf War were never authorized by the UN.)

In March 1998, Security Council members were afraid Washington was going to sideline them on Iraq once more. A parade of Council ambassadors stated explicitly that their resolution, calling for 'severest consequences' in the event of a future violation by Baghdad, did not authorize a unilateral US military strike on Iraq. But when then-US Ambassador Bill Richardson followed his colleagues out of the Council chamber, he blithely shrugged when informed of his predecessors' concerns, and told the press, we think it does (2 March 1998, outside Security Council chamber, United Nations headquarters, New York). And months later, Desert Fox's four days of bombs and cruise missiles devastated Iraq.

By 1999, having denied the UN and European diplomatic organizations the authority and resources needed for serious preventive diplomacy in the escalating Kosovo crisis, Washington took the final step. It abandoned the UN altogether, replacing the legal requirement of UN authorization for the use of force, with the projection of NATO, a military alliance, as champion of yet another bombing campaign.

Of course, the US should have promoted the UN as the central decision-maker years ago, in Iraq, in Yugoslavia, in East Timor and elsewhere. Of course it should have been paying its UN dues, supporting UN efforts (along with those of the OSCE and other regional organizations) to respond proactively to emerging humanitarian crises, supporting the creation of a UN Department of Preventive Diplomacy and a standing, independent UN-controlled rapid-response civilian/police/peacekeeping force. But those things are not required under the laws of empire.

Setting up the UN to take the blame for US and NATO failures is no way to bring peace to Yugoslavia or East Timor - nor to Sierra Leone or Colombia or anywhere else. Being the richest and most powerful nation in the world doesn't give the US the right to trample international law, to run endgames around the UN, to use or discard the global organization at the whim of superpower arrogance or domestic politics.

The world has had enough of empires writing their own rules.

Copyright 1999 Le Monde diplomatique