Toward a New Foreign Policy.

The challenge for U.S. foreign policy in the twenty-first century is to improve the international regime of human rights without undermining the UN charter's prohibition on the unilateral use of force. The most important step toward this goal would be for the United States to eschew military force for alleged humanitarian reasons without the explicit approval of the UN Security Council. The failure to obtain such approval prior to the war against Yugoslavia and prior to the current and continuous bombing of Iraq seriously weakens the key international restraint against the use of force as embodied in the UN charter.

If the real purpose of U.S. humanitarian military intervention is to protect human rights, then America ought to employ peaceful and more principled methods for protecting those rights before resorting to military action. The U.S., which dominates the UN Security Council, should end its political selectivity and begin to work for a more principled human rights stance within the United Nations itself. Humanitarian intervention to stop grave human rights abuses should only be used after multilateral diplomatic and economic measures have been exhausted. This is not currently the case. The United States played the central role in imposing both the UN sanctions on Libya (finally lifted in 1999) and the prolonged, inhumane embargo on Iraq, while blocking sanctions against Israel, Turkey, and other allies that are serious human rights abusers. If Washington truly cares about furthering human rights, it must do so collectively and in a more evenhanded manner.

Former Amnesty International Secretary-General Ian Martin argues that there is too much "enthusiasm in the human rights movement, and especially in the United States, for military intervention on humanitarian grounds." Although he understands that national sovereignty does not necessarily prevail over the responsibility to prevent mass violations of human rights, he emphasizes that "such international responsibility can be properly exercised only by a multilateral decision of the international community through the UN." Martin states that the legitimacy of such decisions by the United Nations depends "upon a proper distribution of power within that organization, the application of a set of principled criteria for military intervention which is not politically selective, and the development of the ability of the UN itself to maintain the control of a military operation."

Although the Clinton administration has shown scant willingness to seek UN authority prior to using force, there is a step that the United States could more easily take: end its military support for nations committing serious human rights violations. In 1998, Congress enacted the Leahy amendment, a provision in the foreign assistance legislation prohibiting foreign aid funds, including U.S. loan guarantees, from being used to bolster units of foreign security forces that are committing human rights violations. This legislation needs to be extended, strengthened, and fully implemented.

In the past, such provisions have often led to executive branch assertions that governments supported by the United States were, in fact, improving their human rights records. During the 1980s, for instance, the Reagan administration repeatedly certified El Salvador during years when that government was committing terrible atrocities. Currently, both the Clinton administration and Congress have pumped military hardware, training, and advisors into Colombia's armed forces and police, despite evidence of corruption and human rights abuses.

A positive sign in an otherwise bleak environment was the State Department's use of the Leahy amendment in December 1998 to deny, in part, a defense contractor's request for U.S.-government financing to underwrite Turkey's purchase of armored vehicles. A key test of administration arms policy toward Turkey is still pending; whether it will issue an export license for Turkey's planned acquisition of 145 attack helicopters, which would likely be used for the destruction of Kurdish civilian targets.

Finally, the United States ought to strengthen its own participation in international human rights agreements and support the international institutions that enforce such agreements. In the long term, stronger international agreements and institutions will save more lives than questionable ad hoc military interventions. The U.S. should sign and ratify the agreement establishing the International Criminal Court. The Senate should remove the reservations added to treaties (such as the International Covenant on Civil and Political Rights) that render them non-self-executing or non-enforceable under U.S. law. At present, U.S. courts have been following a double standard of imposing liability against foreign officials accused of committing serious international human rights abuses, while refusing to recognize such claims brought against U. S. officials. To encourage other nations to apply international human rights law in their domestic courts, we must apply it in our courts.

Changing U.S. foreign policy along these lines will not be easy and is unlikely to happen quickly. However, at the close of a century in which scores of millions have been killed in military conflicts and with the rise of new and extreme ethnic, national, and religious conflicts, multilateral cooperation through a more democratic United Nations is more important than ever.

Key Recommendations

* The United States should not employ military force for alleged humanitarian reasons without the explicit approval of the Security Council.

* The United States should end military support of nations committing serious human rights violations.

* The United States should strengthen its own participation in international human rights agreements.

Sources for More Information

Organizations

Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Voice: [phone] Fax: [phone]

Publications

Noam Chomsky, The New Military Humanism: Lessons from Kosovo (Monroe, ME: Common Courage Press, 1999).

Lori Damrosch and David Scheffer, Law and Force in the New International Order (Boulder, CO: Westview Press, 1991).

Richard Falk, "The Complexities Of Humanitarian Intervention: A New World Order Challenge," Michigan Journal of International Law, vol. 17, Winter 1996.

Thomas Franck and Nigel Rodley, "After Bangladesh: The Law of Humanitarian Intervention by Military Force," American Journal of International Law, vol. 67, 1973.

Michael Mandelbaum, "A Perfect Failure: NATO's War Against Yugoslavia," Foreign Affairs, vol. 78, no. 5, September-October 1999.

Sean D. Murphy, "Humanitarian Intervention: the United Nations in an Evolving World Order," Procedural Aspects of International Law Series, vol. 21 (Philadelphia, PA: University of Pennsylvania Press, 1996).

W. Michael Reisman, "Coercion and Self-Determination: Construing Charter Article 2(4)," American Journal of International Law, vol. 78, July 1984.

Sarah A. Rumage, "Panama and The Myth Of Humanitarian Intervention in U.S. Foreign Policy: Neither Legal Nor Moral, Neither Just Nor Right," Arizona Journal of International Law and Comparative Law, vol. 10, no. 1, 1993.

Oscar Schachter, "The Right of States to Use Armed Forces," Michigan Law Review, vol. 82, April-May 1984.

Stephen Shalom, "Reflections on NATO and Kosovo," available at: http://www.zmag.org /crisescurevts/shalomnp.htm

Wil Verwey, "Humanitarian Intervention Under International Law," Netherlands International Law Review, vol. 32, 1985.

Websites

Jurist: The Law Professors' Network http://jurist.law.pitt.edu/kosovo.htm

Human Rights Now http://www.humanrightsnow.com

Jules Lobel is a professor at the University of Pittsburgh Law School and Michael Ratner is an associate at the Center for Constitutional Rights and a Skelly Wright Fellow at Yale Law School.