The New Interventionism: The Search for a Just International Law

Michael J. Glennon

From Foreign Affairs, May/June 1999

Article preview: first 500 of 2,769 words total.

Summary:  The anti-interventionist rules of the U.N. Charter have fallen out of sync with the modern concept of justice, so NATO is taking the law into its own hands.

Michael J. Glennon is Professor of Law at the University of California, Davis, Law School. He is a former Legal Counsel to the Senate Foreign Relations Committee and the author of Constitutional Diplomacy.

As the twentieth century fades away, so too does the international consensus on when to get involved in another state's affairs. The United States and NATO -- with little discussion and less fanfare -- have effectively abandoned the old U.N. Charter rules that strictly limit international intervention in local conflicts. They have done so in favor of a vague new system that is much more tolerant of military intervention but has few hard and fast rules. What rules do exist seem more the product of after-the-fact rationalization by the West than of deliberation and pre-agreement.

The death of the restrictive old rules on peacekeeping and peacemaking -- under which most bloody conflicts were simply ignored as "domestic matters" -- should not be mourned. Events since the end of the Cold War starkly show that the anti-interventionist regime has fallen out of sync with modern notions of justice. The crisis in Kosovo illustrates this disjunction and America's new willingness to do what it thinks right -- international law notwithstanding. The horror of ethnic cleansing in the Serbian province was well publicized. As Slobodan Milosevic thumbed his nose at the international community, pressure built to use force against him, whether the U.N. Charter allowed it or not. Thus when the Western allies launched air strikes, the move was largely popular. It was not, however, technically legal under the old regime. After all, Kosovo is still part of Yugoslavia. No cross-border attack -- the one circumstance where the charter allows an international military response -- had occurred, and the Security Council had never authorized NATO military measures.

Thus in Kosovo, justice (as it is now understood) and the U.N. Charter seemed to collide. But it is not only that the U.N. Charter prohibits intervention where enlightened states now believe it to be just -- its problems run even deeper. For the charter is grounded on a premise that is simply no longer valid -- the assumption that the core threat to international security still comes from interstate violence. This assumption is no longer true. Moreover, thanks to Cold War deadlock and the veto power held by the five permanent members of the Security Council, the old rules never prevented such interstate violence in the first place (witness Afghanistan, Vietnam, etc.).

Whether the cost of abandoning the old anti-interventionist structure will be offset by the benefits of the newly emerging one remains to be seen. Replacing a formal system with a set of vague, half-formed, ad hoc principles can be dangerous. Untested rules may have unexpected consequences, and justice formed on the fly may come to be resented. The failings of the old system were so disastrous, however, that little will be lost in the attempt to forge a new one.

CRISIS (MIS-)MANAGEMENT

Just as generals too often refight the last war, when the drafters of the U.N. Charter set its limits on state power, they responded to the crises precipitating World War II, without anticipating those that would follow it. They devised ...

End of preview: first 500 of 2,769 words total.