Human rights and foreign policy: what the Kurds learned (a drama in one act).
[Smiling as usual like a man experiencing a difficult stool, the National Security Advisor opens the discussion.]
NATIONAL SECURITY ADVISOR: You will recall that after liberating Kuwait and pulverizing Iraq's armed forces, the President was the object of vicious attacks by a truly weird alliance of so-called pundits for failing to liberate the Kurds and the south Iraqi Shiites. I am surprised, frankly, that no one mentioned his indifference to the Bushmen and Hottentots too. [The Advisor's smile/grimace widens as an appreciative chuckle sweeps the room.]
Never mind that we had accomplished our stated goals! Never mind that no American president had ever won so much, so quickly, at so little cost! Never mind that the great majority of Americans evinced no desire to invest American lives in the redesign of Iraq! It's all bullroar, as the President well knows! Nevertheless, he thinks that charges of moral insensitivity undermine presidential authority. Moreover, he wants to move beyond being simply the Liberator of Kuwait and The Education President. He wants to be known also as... The Human Rights President. Furthermore, he says we need to preempt before all the vegetarians, the earth-shoe pacifists, the anti-gun nuts, Holy Jimmy C., Jesse Jackson, and flatworlders generally get a monopoly on this human rights imagery. The shells that pundits have been lobbing at us over the MFN-for-China decision(1) have only heightened his concern.
So that's why you are here today. We are going to think through the parameters of a human rights program that will go right into the President's State-of-the-Union speech and emerge as presidential policy. I'm talking operational guidelines. I'm talking real-trade-offs. I'm talking building human rights into Standard Operating Procedures--consistent, of course, with our other objectives.
KARTOFFEL: Ah! Is that not just the point? The idea that all good things come in one package is pretty; it is quintessential American; and in this as in most other instances it is wrong. A serious human rights program is inconsistent with a serious diplomacy. The President did exactly the right thing in the Gulf and then in this matter of the Peoples' Republic. And I will tell you why he did it. [arranging his slightly podgy features into an expression that his auditors might find steely] He did it because he knows that the function of a leader is not to mirror the moral confusions, the caprices, and the ignorance of the electorate, but rather to represent the interests of the nation.
I, myself, have been accused of insensitivity to the moral dimension of foreign policy. [managing to make his face simultaneously convey self-satisfaction and contempt] What our accusers fail to grasp is the incongruity between the moral criteria appropriate to everyday life in civilized societies and those appropriate to statecraft. The mandate to conduct this or any other country's foreign policy carries with it the obligation to preserve our political independence and territorial integrity and the general welfare of the population, and to do so at the smallest possible cost in lives and treasure. Moral action in international relations is any action reasonably directed to those ends.
RECTITUDE: [in that soft, effortless voice that gentlemen of a certain class, accustomed to an attentive audience, sometimes assume] This mandate you speak of, I wonder if you could enlighten us about its provenance? I imagine you will agree that in this country, mandates do not have a Divine origin, however much we might wish the contrary. And if you can follow me that far, ... [Kartoffel visibly winces at what seems to him an unself-consciously patronizing tone] ... you will also agree that their only possible source is electoral preference. And if, as the Founding Fathers anticipated, the House is closest to the popular pulse, its attitude on the subject evidences rather substantial popular support for a foreign policy fostering human rights.
KARTOFFEL: [openly impatient] Putting to one side your peculiarly populist conception of presidential authority, I wonder if you could name one election for the presidency, or for a congressional seat, or for dogcatcher in which the outcome was determined, for instance, by the candidates' respective positions on South African sanctions or the moral merits of continuing aid to Zaire?
RECTITUDE: [innocently] Or the moral merit of rewarding Dictators who overthrow duly elected governments and torture those who object to the transaction?
Actually, I would suppose that your Party's derisive share of the Black vote during the 1980s might have had something to do with the last President's conspicuous indifference to the continuation of apartheid in South Africa.
KARTOFFEL: [purring] It is good of you to introduce a further point I wish to make. Let us assume that US policy in South Africa may influence the behavior of African-American voters, just as in the seventies, when I was trying to orchestrate a very delicate arrangement with the Soviet Union, the emigration issue moved Jewish voters to demand conditions on the granting of MFN status to Moscow. Both instances demonstrate two things: first, that in those instances when Congress, acting in the name of human rights, really ties the President's hands, it is moved not by a broad national consensus but by the parochial passions of relatively small minorities; second, precisely because our Congress is the instrument of special interests, it is bound to behave in a perfectly unprincipled manner.
RECTITUDE: [drawling] And pray tell, my dear fellow, what would you describe as "principled"?
KARTOFFEL: [with extreme unction] I doubt, Elliott, that you of all people require instruction on this point. But for the benefit of those who have not had occasion to contemplate these matters with the same intensity as you, I will note what to you must be obvious: namely, that to be principled is to allow a state's treatment of its own citizens to govern our treatment of it. We reward those that are gentle and cuddly. We punish wicked stepmother regimes. And if in the process we impoverish and imperil our own people, then, pending their pleasure in driving us from office, we let them find solace through contemplation of our good works done in their name.
RECTITUDE: We both know--do we not, Henry?--that exaggeration is instinct in every good polemicist. And no one has ever doubted your polemical powers.
KARTOFFEL: In this, as in other matters, I defer only to you, Elliott.
RECTITUDE: In order to deny human rights any place on the agenda, Henry, you claim that it requires the only place; to give it less, you imply, is forbidden by the very ethical concerns that fuel demands for its presence. Surely you don't expect us to take that proposition seriously.
KARTOFFEL: But I do! I do! [extending his arms palms upward as if invoking Divine confirmation of his sincerity]
RECTITUDE: Then I fear you have committed yourself to disappointment. To begin with, this is hardly the only point in the realm of moral discourse where strong ethical appeals collide. The dogmatist chooses one and anathematizes the other. The practical moralist, that is, the person concerned with the needs of real people rather than abstract systems, finds a coherent basis for mediating between the claims, finds grounds for compromise. The effort to maintain peace and freedom and national identity in an anarchical political order is moral work. The effort to prevent other governments from butchering their subjects is moral work. I know of no serious person who claims that the two will always coincide.
KARTOFFEL: You must get to know your colleagues better, Elliott. Perhaps you intimidate them. Encourage them to express themselves and you will discover either that you are wrong or that many of them are not serious. But be that as it may, your point, I take it, is that collision will not occur in every instance. But where the two coincide, by acting realistically to advance the national interest we will incidentally advance human rights. By definition no intention is required. Where, on the other hand, they collide, either you would have us sacrifice the national interest for the benefit of some notional human interest, or you would accept the priority of national concerns. If you accept that priority, then both in case of coincidence and of collision it would be otiose to agonize over the human rights consequences, as such, of our decisions. Do you take my point, Elliott?
RECTITUDE: I fear, Henry, that not all statesmen ... [pause] ... and stateswomen too ... [smiling solicitously at the single representative of that gender in the room] ... find their way as unerringly as you do to the national interest quotient of every political problem. Unlike you, Henry, I believe that factoring human rights concerns into the assessment of means will heighten our ability to choose those best matched with our ends. Choosing a policy is often a matter of shaping a relationship to other governments. When human rights has a place on the agenda, we are compelled to pay close attention to the characters of those governments. Regardless of what may have been true in the past--although I am prepared to debate on that ground if you insist--in the present, human rights delinquencies evidence, among other things, a regime that is precarious and therefore unreliable. It may also evidence the rule of a pathological personality. For example, had we been more concerned about human rights in Iraq, we should have been less surprised by the invasion of Kuwait.
KARTOFFEL: It was a Jewish sage, Elliott, who remarked that "for example is not proof."
RECTITUDE: No doubt he was an ironist as well as a sage, Henry; for by virtue of being a sage he would have appreciated that "for example" is pretty much all we have in the way of proving hypotheses about international relations. Let me suggest a second way in which we heighten the rationality of our decision processes by putting human rights onto the agenda. The power of our or any other state is in part a function of our cohesion. One can, if one chooses, play Canute and wish away the American people's desire to feel virtuous as well as succesful. But no one who does that can plausibly claim to be a realist. Cynicism is a Gallic, not an American, property. If it pursues a particular relationship without regard for human rights consequences, an administration threatens public support not only for that policy but for all of its other works.
KARTOFFEL: [interjecting] I do not think you can invoke even one example to support that claim. Americans care deeply about four things: defeat (which is not winning), casualties, taxes, and cheap gas. The rest is small change, except, perhaps, to intellectuals in the softer disciplines. And, as you so aptly noted, Elliott, we are not like the French: intellectuals don't get window seats here.
RECTITUDE: Let me put a third point to you, Henry. As an historian--which after all you were before you became a man of business--you know that two democracies have never gone to war with each other. Unless you think that is entirely coincidental, you can see a basis resting on the narrowest conception of national interest for defending and promoting democratic governments which, in the main, respect and protect human rights better than other sorts of political arrangements. Although it may come a bit close to the bone, I suppose you will concede that, over the past few decades, preserving and defending democracy other than in cases where it was threatened by the Soviets or Marxist resolutionaries has not been a national priority.
KARTOFFEL: Out of respect for historical accuracy, Elliott, I will remind you of the war of 1812 between the democracies of the United Kingdom and the United States.
RECTITUDE: It would be equally relevant to remind us of the Peloponnesian War. Britain in 1812 enjoyed many things; democracy surely was not one of them. Along with coercion, bribery, and rotten boroughs, perhaps five percent of the adult population was enfranchised.
KARTOFFEL: [growling] An unqualified adult suffrage may satisfy contemporary prejudice, but it does not necessarily produce more representative, much less better, government. However, out of respect for our colleagues, I will not extend this pedants' delight. I defer happily to your claim because it does so little to advance your position.
To begin with, the historical period in which democracies have faced each other is simply too brief to be very suggestive. Secondly, the fact that states with democratic governments have not assaulted each other, at least recently, can as easily be explained in terms of other common characteristics: race, culture, capitalism, the balance of power, and so on. Unless and until we have an extensive experience with a large number of democracies of widely different national characters, we cannot assume that their relations are naturally amiable. You will recall that France and Britain nearly went to war in 1896 to resolve the right to claim sovereignty over some pestilent part of the Sudan.
I am delighted to agree that our national interest is generally served by the multiplication of pluralist, market-oriented states. But we want orderly states as well. Mass democracies, the ones you and other human rights enthusiasts seem to prefer, can be very disorderly. Encouraging the view that every conceivable human appetite should be viewed as a right only adds to the disorder.
The gravest objection to your argument, however, is the awkward fact that most states simply are not democracies in any meaningful sense and by their nature are unlikely to become or to remain so, absent defeat and long-term occupation by the United States. To defeat them, we would, as in the case of Iraq, have to batter them first. Even where national interest and moral criteria have coincided, again as in the case of Iraq, the human rights community has decried the resulting destruction, as if we could have achieved our objectives by blowing loudly on a horn. And the Bible tells us that it too achieved its ends through substantial material damage to the recalcitrant city. Then, if we settle in for a long occupation, your colleagues will vilify us for violating the right to self-determination.
I, myself, doubt that the majority of societies have the cultural and other requisites for sustaining a democratic enterprise, even if they are exposed to it through an extended instructional essay. A world populated by authentic democracies might well be more congruent with our interests. But it is most certainly not in our interest to try and make such a vision flesh. We should leave such enterprises to God.
RECTITUDE: There you go again, Henry, caricaturing the implications of my position. Since that is doubtless as clear to the other people in this room as it is to me, I will not belabor the point. I will only appeal to your good sense with one final consideration. Being now a denizen of the private sector, with clients and enterprises scattered among many countries, you must be peculiarly sensible of the growing irrelevance of borders and the diminishing power of the state over the movement of goods and services, people and ideas. In the world as it is fast becoming, people beyond our borders are potential immigrants to our country, consumers of our products, kin or allies of groups within our own state. We cannot avoid involvement in their fate or they in ours. And so we must be concerned with the impact on them of our acts and conscious omissions.
KARTOFFEL: Transnationalism or interdependence, however you want to label the thing, seems to induce a positively lyrical romanticism in some people. But to be brutally frank, Elliott, I am surprised to see you among them. I accept the proposition that, as a consequence of the technological revolution and the associated construction of a global market-driven economy, great powers experience a reduced capacity to protect their interests through unilateral action. Or perhaps what has changed is that there are more interests in need of protection. Insofar as military security is concerned, cooperation has been a commonplace of statecraft for millennia. Two centuries ago we did not have to concern ourselves with other people's interest rates, or toxic wastes, or their choice of crops or their preference for whale meat and the skins of young seals.
However, in ironic contrast to the pollyannaish hopes these developments have induced in the hearts of otherwise sober citizens, these developments weigh powerfully against a politics of sanctity. We have more, and more pressing, business with other governments than we ever had before. The bounding variety of the interests and concerns we now share with other states has aggravated the costs of conflict. Governments with Lilliputian armies but large debts, huge forests ready for burning, vast illiterate populations lusting to depart, or suicidal terrorists tugging at the leash can make themselves very disagreeable to great powers like ourselves. I do not think we contribute to a cooperative spirit by questioning the legitimacy of our collaborators. Yet that is exactly what we are doing when we question their treatment of their own nationals.
NATIONAL SECURITY ADVISOR: [quickly, as if unsure whether Kartoffel is stopping only for breath] You have made a very strong case for caution in these matters, Henry. I have heard you make it before ... [Kartoffel's expression becomes less pleased] ... though perhaps never quite so persuasively. [The smile reappears.] Still, the President has resolved to put human rights on the agenda, so we are free only to work out the implications of its presence. As an advocate of the position the President has adopted, Elliott, you must have thought a great deal about the question of implementation. So perhaps you will share your ideas with us.
RECTITUDE: [seemingly impervious to the straining efforts of others round the table to find a purchase on his soft-footed words] I agree it would be irresponsible to propose a course of action without any real idea of where it would lead. Perhaps I can be of some help at the outset by suggesting a sequence of issues, the sequence I in fact employed in trying to think this difficult matter through. I would suggest that we first consider the question of means, specifically whether we should rule out certain means under all readily conceivable circumstances. Then we might see if we can agree on substantive priorities. After all, at any point in time practically every country is violating some right, however notional. Henry's good-natured implications to the contrary, I do not think we are anointed by God to cleanse the world. So at any given moment we must focus our effort, whether it be great or small, on a limited number of cases. We should agree on the criteria for identifying them. Once we identify the range of acceptable means and the character of appropriate cases, we could work out guidelines for relating means and cases and conclude with a few illustrations.
NATIONAL SECURITY ADVISOR: The floor is yours, Elliott.
RECTITUDE: Fine, as long as it is understood that what I have to offer are very tentative thoughts.
KARTOFFEL: [whispering stentoriously to the CIA Deputy Director on his left] Tentativeness is the peculiar genius of a Republican moderate's thoughts.
RECTITUDE: [murmuring, apparently insensitive to Kartoffel's jibe] As for means, I would presumptively exclude direct military intervention other than in the improbable case of an intervention authorized by the UN Security Council or the OAS. In doing so, of course, we surrender nothing real. the electorate's support for altruism normally stops short of casualties.
CHAIRMAN OF THE JOINT CHIEFS: Do I detect you leaving a little wriggle room?
RECTITUDE: We are considering guidelines, rules of the road. Since we cannot foresee all of the countless conjunctures, we have no alternative but to employ them. They are by nature generalizations about the sort of behavior which will in most cases be desirable. Hence it is not I, but rather they, that leave the wriggle room.
KARTOFFEL: [laughingly barking] If I may have the honor of translating Elliott's idiom, General, his answer is "Yes."
CHAIRMAN OF THE JOINT CHIEFS: Are you leaving it for the sake of principle or because you can actually envisage a case in which you would urge the President to deploy force, unilaterally if necessary?
RECTITUDE: I can envisage circumstances which would make me want to think the presumptively unthinkable: the mass killing of civilians by a militarily weak government without much internal legitimacy or international support. Call it the "euthanasia exception". We refuse to legitimate euthanasia because we fear the slippery slope. Yet we anticipate that, every once in a while, some case will be so appealing that a jury will refuse to convict. By keeping the prohibition and the associated criminal penalties, we put a heavy burden of persuasion on whoever decides to do it. In this way we hope to limit euthanasia to a handful of peculiarly appealing cases whose precise details we can't entirely anticipate. What do you think, General?
CHAIRMAN OF THE JOINT CHIEFS: I like the analogy. So far I am with you.
RECTITUDE: Then I am in good company. As for all of the other instruments of statecraft--the entire range of economic carrots and sticks, public and quiet diplomacy, even in certain cases assistance of one sort or another to dissidents and rebels--I would rule none of them out.
KARTOFFEL: Of course, Elliott, you are the lawyer here. Being a simple historian and a man of business manque, I could be entirely wrong, but I do vaguely recall being told once--could it possibly have been during that unpleasant business in Indo-China?--that foreign assistance to rebels was most categorically illegal. At the time I found that conclusion useful. Still, as you well know, Elliott, my interest in the academic wrangles of international lawyers is not obsessive. I am, I think, fairly well known for believing that good judgment and a sense of history is more helpful to the statesman than texts in old books. But you, my dear fellow, are even better known for your attachment to those texts. So while I am too old to be astonished by anything, I am slightly surprised to hear you advocating means of doubtful legality. Have you concluded that human rights trump the law? Or is this to be euthanasia again?
RECTITUDE: That is a remarkably fair question, Henry. I think it may be occasioned in part by a way of viewing law--namely, rules preserved in dusty old books--that was very widely accepted in the last century and survived on the banks of the Charles well into this one, I am sorry to say. These days it is generally recognized that rules are only one element in the legal process. They express in summary form expectations about the behavior which will ordinarily promote certain values and policies. Those values and policies are themselves relevant legal materials. The rules, that is the texts, help guide us to the factors relevant to deciding in a particular case what behavior should be applauded and what condemned.
KARTOFFEL: What a wonderful formula for flexibility! I am going to memorize it so that I am ready the next time some lawyer announces that something I propose is illegal.
RECTITUDE: To say that law cannot be reduced to the mechanical application of words to a given set of facts is not to say that the law is infinitely manipulable. If it were, practical people would not struggle over the wording of statutes, treaties, and contracts. Be that as it may, Henry, I think we should not consume the valuable time of our colleagues. Nevertheless, the question you put is really very good: Should we adopt as a guideline the proposition that, in protecting human rights, we will not employ means that are illegal either under US or international law?
DEPUTY DIRECTOR OF THE CIA: Like assassination, for example?
RECTITUDE: For example.
CHAIRMAN OF THE JOINT CHIEFS: If the topic is morality, I would have thought it was one hell of a lot more moral to kill one murdering son of a bitch who's running a slaughterhouse state than to pulverize the poor bastards he's conscripted into his army. If a guy's doing mass murder, sanctions may seem to the victims just a wee bit irrelevant. And I don't think it will ever be in the national interest to fight a war over conditions in another country that don't directly affect Americans. But if we could save a lot of people by one well-directed shot, I might feel the price was right.
RECTITUDE: Most human rights violations are generated by harsh contradictions within a political system, not by the pathological instincts of one man or woman. So ...
KARTOFFEL: Hitler? Stalin? Amin? Bokassa? Mengistu? Saddam? You want more, I can give them to you.
RECTITUDE: Fair enough, although even that list is a little more problematic than you think. Problematical in two senses: first, it is by no means clear that their successors, coming from the same tribe or clique, would not have pursued very similar policies, since the underlying circumstances would not have changed. Second, if the international community had reacted sooner to accelerating violations of human rights, lesser measures might have forced a change in policy or an internal coup. Let me add that many of the worst butchers are particularly careful about their personal security. And if an attempt fails, it may succeed in triggering even worse massacres. Still, there are rare cases where a single hideous figure pursuing idiosyncratic policies holds a rotten political order together and is vulnerable to assassination. For me, however, that conjuncture is sufficiently rare that I am not willing to put assassination on the list of acceptable means. Outside the context of war, it is summary execution, itself a violation of human rights. Moreover, if it is on the agenda for promoting human rights, it will end up on the agenda as an acceptable means to less elevated ends.
KARTOFFEL: If, you are referring to the protection of our strategic interests, we may choose to disagree about the relative elevation of ends.
RECTITUDE: Where we may disagree, if disagree we must, is in our notions of what constitutes the nation's strategic interests in a given case in today's world, as distinguished from Metternicht's, about which you have written so ably. But we will let that discussion abide the day.
SPECIAL ASSISTANT TO THE (absent) SECRETARY OF THE TREASURY: While we are on the subject of legal and illegal means, I wonder, Ambassador, what your views would be on trade embargoes and efforts to bar access to the International Financial Institutions. I can think of more than a few regimes that would find it very hard to survive for a long time in the wake of exclusion from the US market. And if at the same time we blocked or delayed access to the IMF after our embargo turned their trade balance red, we sure as hell would test their dedication to butchery. But I seriously doubt the legality of an embargo against a GATT member. I even more seriously doubt whether it would be in our interest. Talk about slippery slopes! The last thing we normally want are precedents for politically-inspired exceptions to MFN.
RECTITUDE: If we are authorized by the Security Council, I see no legal problem whatsoever. For UN members, Council decisions under chapter seven override all contrary commitments. Authorization also alleviates the precedent problem: not only is it a rare and sharply defined condition, it is also one where there is perforce a broad consensus for an exception. Even if we act without authorization, I think the legal objection is spurious so long as the violations that inspire our action affect those few human rights whose existence is universally conceded. In the jargon of the law, those rights are jus cogens, which means that they trump other rules of customary law and of international agreements. The same point applies to the claim that the IMF Charter prevents it from taking human rights criteria into account. In the case you posit, however, the Fund would not have to rely on such criteria, since, as a consequence of our embargo, the supplicant would have very poor prospects for repaying the money it wanted to draw down. Hence, its request could be rejected under traditional banking criteria.
[At this point the NSC Staff's Legal Advisor passes a note to his master.]
NATIONAL SECURITY ADVISOR: Elliott, a last point on this interesting question of whether we should feel restrained by the law. We have been discussing the more dramatic and costly sorts of means. Assuming I would be inclined to urge their use under any circumstances, if more traditional sorts of national interests were not at stake, presumably those circumstances would be very grave and widespread and sustained violations of the most elemental human rights. Governments engaged in sustained atrocities must be deeply committed to what they are doing. It stands to reason that, in most instances, they do what they do because they feel profoundly threatened. Threats and crushing economic sanctions may make them desist briefly from the more flamboyant violations. But we can, I think, anticipate that they will continue behaving pretty badly, and, when the pressure is off, they may regress absolutely.
Now, the question I put to you is this. Why should we ever pay the costs incident to a serious confrontation with such a regime in order to achieve a merely marginal and, worse, merely temporary improvement?
KARTOFFEL: Perhaps to make Elliott's associates feel virtuous and to give the President moral capital he can expend when the vegetarians are demanding some absurd sacrifice of real interests in order to save the Hottentots, or the Tibetan Bigfoot, or the cross-eyed otter.
RECTITUDE: Yes, Henry, that may be so; however, I doubt that we will accumulate much moral capital if the result of our effort is seen to be paltry.
NATIONAL SECURITY ADVISOR: So if we are going to pay a price, shouldn't we go the distance and indisputably accomplish the goal of ending the massacres? Doing that, however, may very well require us to orchestrate the overthrow of the government in question. That is point one. Point two is that having effected its overthrow, we will seem responsible for what follows, which could be an orgy of revenge unless we are in physical control of the situation.
Suppose we are in physical control, and suppose that, because the displaced regime is an old one, most of the political and administrative institutions of the society are in ruins. In order to insure a happy outcome from our involvement, we might have to remain for some time. Now, my question is this: If you took a poll at the United Nations, is it not likely that the overwhelming majority would declare it illegal for us to conspire in the overthrow of a member state's government? Wouldn't the same majority and possibly a larger one hold us responsible for a post-overthrow massacre of the former regime's supporters? And wouldn't an equal majority condemn our occupation of the country as an aggravation of our initial misdemeanor?
RECTITUDE: Yes, fearing the precedent, the great majority would hew to the line of non-intervention. Still, I think that majority is decreasing a bit, that there is a growing acceptance of the proposition that the international community cannot sit by idly while people are butchered.
NATIONAL SECURITY ADVISOR: Still, for the present that majority will condemn us, right? And aren't its views decisive on the question of what is the law?
RECTITUDE: There are degrees of condemnation. The degree is governed by codes of mitigation which are never formally expressed -- for instance in UN resolutions -- but which you can induce from the response of states to previous cases. If the violations were awful and sustained; if there seemed no way of halting them short of overthrowing the regime; if we attempted to obtain UN authorization or at least consulted widely; if we had no obvious ulterior motive; if we were not implicated in the birth or consolidation of the delinquent regime; and if we organized fair elections as quickly as possible, handed over power to the resulting government, and helped it financially to get started, then I think the condemnation would be pro forma.
KARTOFFEL: Bravo, Elliott! You are absolutely right! International law is majority rule. But the international system is not a democracy. It is not even a government. And today's majority is a league of inconsequential national elites. Great powers must use their best judgment about how to preserve their interests and the common interest as well.
RECTITUDE: You are in error, Henry, both about the degree of our agreement and about the nature of international law, which presently reflects quite well the interests of the great powers without utterly neglecting the interests of smaller states. And it was you, Henry, who so vividly evoked the contemporary power of militarily weak states to generate costs for the strong ones. NATIONAL SECURITY ADVISOR: [pulling a watch from his pocket and glancing at it pointedly] My friends, I must drag us away from this learned discourse which makes me appreciate, as I never did before, the travail of law students. It must be rather intimidating to be studying a subject while your professors debate what it is. Now, I wonder if we could follow the course Elliott proposed and move on from the matter of means to the question of which rights should command our attention. In your examples, Elliott, you continuously used the right to physical security, specifically the right to life. But couldn't it be argued, as certain figures in the last Administration frequently did, that the key right is democracy? If it is in place, the other rights are more-or-less automatically protected, no?
RECTITUDE: Not always, I am afraid. If we define democracy...
KARTOFFEL: [raising his palms and eyes toward the ceiling and shouting plaintively] Will no one rid us of the definers?!
RECTITUDE: [amidst the ripple of appreciative laughter] If we define it as rule by the representatives of an electoral majority, there is nothing in its nature which absolutely precludes ruthless treatment of minorities. Witness the condition of blacks and Native Americans in this country during the last century, or the contemporary treatment of indigenous peoples in several Latin American countries, or of Kurds in Turkey. To be sure, the liberal ideology and the conditions, such as relative freedom of association and expression associated with the regular functioning of electoral democracies tend to inhibit the worst sorts of abuse and, over time, to correct the animus from which abuse springs. But self-correction is not automatic, at least not in an acceptable time frame.
The main problem with making democracy the centerpiece of a human rights policy is the one someone noted earlier: namely the very large number of states that neither are, nor seem likely soon to become, democracies, even if we and the other democracies make a substantial collective effort to convert them. That number would be large in any event. It becomes larger still if you add to it the states in which decisive power over public issues is in the hands of officers and oligarchs rather than elected officials.
So if democracy were treated as the litmus test of a satisfactory human rights performance, we would end up dissipating our energies among a hundred candidates for attention and fraying the great majority of our bilateral relationships.
KARTOFFEL: It is because Elliott's last proposition is a non sequitur that I, at least, quite like the idea of treating democracy as the keystone right. As marketed by our--shall we say "rambunctious"?--neo-con allies, democracy proved entirely compatible with, indeed it functioned as a complement to, our security policies in the eighties. The authoritarian/totalitarian distinction greased the relationship. Since, according to the Kirkpatrick bible, totalitarian, i.e., Marxist, regimes could not evolve into democracies, we had excellent moral, no less than security, justifications for bleeding leftist governments in Nicaragua, Angola, Cambodia, and other places with which all of you are familiar. Conversely, the democratic potential of our merely authoritarian allies justified a positive, albeit tutorial, sort of relationship. By shipping aid for such morally impeccable ends as promoting the rule of law, we could participate in the politics of moral passion without weakening valued, if slightly scuffy, allies.
We will agree that Mrs. Kirkpatrick's theses look a bit shopworn these days. But even shorn of that excrescence, the democracy focus remains the best way of channeling unzipped sentimentality in an anodyne direction or, shall we say, absorbing it into a sensible foreign policy.
Of course one cannot altogether eliminate its potential to cause trouble; note the way it has complicated our China diplomacy. Still, one takes one's culture as one finds it. If we cannot eliminate a certain strain of mawkish idealism, then we must coopt it.
That can be managed in large part because whenever the costs of a sentimental politics become conspicuous, the practical side of the American mind asserts control. So you can see why the vast number of hopelessly undemocratic states constitute the strongest possible argument for treating Democracy as our centerpiece. Confronted with that horde, the potential sacrifice of conventional national interests will be grossly evident. Only a few fanatics will go on calling for sanctions and embargoes. And most of them, being on the Panglossian internationalist left, will in any event flinch from really tough unilateral initiatives. We can disable them in most cases by ourselves, insisting that sanctions should be collective. Can you visualize the United Nations adopting sanctions against a state for being undermocratic?
So let us herewith declare universal democracy to be our goal, one to be achieved in the fullness of time through positive reinforcement and collaboration with our democratic allies. [Kartoffel, beaming amiability, acknowledges with a nod the murmur of agreement that surrounds him. Several participants show signs of preparation for departure. A few eye Rectitude warily. It is, however, the National Security Advisor who speaks.]
NATIONAL SECURITY ADVISOR: That's fine as far as it goes, Henry, but I think the President will want a bit more. Governments are going to go on butchering people here and there. Congress and one set or another of the editorialists will become histrionic. The President wants some sort of preemptive policy. What I think he has in mind is a clearly articulated set of guidelines which will force the debate in each case onto grounds where he is comfortable.
RECTITUDE: Why not take Congress's own standard and make it your own? Four presidents have managed to live with it over the past fifteen years or so without very great discomfort. Congress could hardly complain.
NATIONAL SECURITY ADVISOR: You are referring, Elliott, to...
RECTITUDE: To the language of section 502(b) of the Foreign Assistance Act and the equivalent provisions governing economic assistance and the votes of the American Directors on the Boards of the IFIs: no assistance to any government "which engages in a consistent pattern of gross violations of internationally recognized human rights."(2)
As a number of you know, I have not always agreed with the last administration's interpretation of that language nor with its invocation of the exceptions for "extraordinary circumstances." And were I advising the Speaker of the House, I might well urge a certain tightening of the language, albeit with full knowledge that general language can never by itself cage a president determined to remain free. Nevertheless, I think that the language is sufficient as a point of departure for the President's policy and probably takes him as far as he is willing to go at this point. I think it will force human rights onto bureaucratic agendas where it might otherwise be absent.
NATIONAL SECURITY ADVISOR: [turning to his counsel] Remind us, will you, Bubba, how we have hitherto construed the 502(b) text and why it has not been unduly constraining.
COUNSEL TO THE NATIONAL SECURITY ADVISOR: We've taken the following line. First, the words "consistent pattern" are not redundant. "Pattern" means that the violations are widespread. "Consistent" means that they continue over a number of years.
What that has sometimes meant in practice, I am sorry to say, is a morbid enthusiasm for finding a break in the pattern of, let us say, death squad killings if they fall from fifty to forty a week, instead of inquiring whether the decline is primarily attributable to a temporary insufficiency of appropriate victims.
NATIONAL SECURITY ADVISOR: I do recall some unpleasantness about this point, particularly with reference to El Salvador. Well, carry on Bubba.
COUNSEL TO THE NATIONAL SECURITY ADVISOR: Secondly, "gross violations" are those that are enumerated in 502(b) even though they are preceded by the word "including." The list consists of torture or cruel, inhuman or degrading punishment, prolonged detention without charges, and causing the disappearance of persons by the abduction and clandestine detention of those persons. Paradoxically, murder is not enumerated. Arguably, it was intended to be included under the general concluding reference to "other flagrant denial of the right to life, liberty, or the security of the person." You will note that among the rights not enumerated are those to emigration and to participate in fair and meaningful elections.
NATIONAL SECURITY ADVISOR: And the escape clauses, if you will--are we limited to extraordinary circumstances, and is a definition of them strongly implied?
COUNSEL TO NATIONAL SECURITY ADVISOR: The answer to both questions is no. The President may lift an initial prohibition if he finds that there has been a significant improvement in the delinquent government's human rights record. And in the case of development assistance, there is an exception for assistance that will directly benefit needy people. I see some wriggle room there.
NATIONAL SECURITY ADVISOR: Am I right, Bubba, in recalling that no president, not even the irreproachable Jimmy, has ever formally identified a government as having satisfied the 502(b) test?
COUNSEL: Your memory serves you well, Sir.
NATIONAL SECURITY ADVISOR: Well, I think we have our guidelines. What greater compliment could we pay to our friends on the Hill?
[The National Security Advisor thanks the participants, heaps praise on Rectitude, and declares the meeting over. Everyone else other than Kartoffel leaves. Kartoffel and the National Security Advisor exchange the smiles of old comrades in arms.]
NATIONAL SECURITY ADVISOR: It is quite an occasion, Henry, when you and Rectitude seem equally pleased. Of course pleasing him was one of our tasks.
KARTOFFEL: Like most lawyers, he thinks that because we have adopted his language, he has won. I am pleased by the conviction that it is an empty victory.
NATIONAL SECURITY ADVISOR: It rather depends on the President, don't you think, Henry? And he can be unpredictable.
KARTOFFEL: On the contrary. I think that where foreign policy is concerned, he is entirely predictable. You and I and he--we see the world as it is. It is, after all, a world of states, and we are the stewards of the destiny of this one, not of some abstraction called mankind. Before their rising, the Kurds did not understand this. A pity, isn't it, that experience can be such a harsh teacher?
(1.) See Robert F. Drinan, S.J., and Teresa T. Kuo, "The 1991 Battle for
Human Rights in
China," Human Rights Quarterly 14 (Nov. 1991): 21-42.
(2.) 22 U.S.C. Section 2304 (1987).
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|Author:||Farer, Tom J.|
|Publication:||Human Rights Quarterly|
|Date:||Feb 1, 1992|
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