16 July 2007 - International law, the UN, and reality

In reading Menachem Begin’s account of the Jewish underground in Palestine, The Revolt, I was struck by the way Begin justified attacks against the British authorities by calling on “international law.” Strictly speaking, he may have been right—the British were violating the terms of their League of Nations mandate—but it is interesting how terror groups of all kinds appeal to international law.

Calling on international law is like threatening a schoolyard rival by telling him that you have a big brother that will beat him up if he messes with you. And just as the big brother may in fact be made up, so international law, too, is a kind of fiction. That is not just because it is “unenforceable,” as a friend of mine once complained, but because it is in fact just a label given to all kinds of different arrangements.

Probably the most successful forms of international law are bilateral treaties between nations. Multilateral treaties can create stable rules, but less stable as more nations are added to the mix. Customary international law, created by the behavior of states and interpreted by organizations such as the International Red Cross, is far weaker. And weakest of all are the UN and its various institutions.

That is ironic, given that the UN was designed to have the muscle that its predecessor, the League of Nations, did not. But the two have foundered on similar grounds—specifically, the lack of will among member states to enforce their joint decisions, and the ease with which evil designed are tolerated or even encouraged within the system. The problem is moral and political, not legal or institutional.

Former Israeli ambassador to the UN and Sharon adviser Dore Gold takes up the UN’s failures in Tower of Babble: How the United Nations Has Fueled Global Chaos. It’s an excellent, well-researched and well-written book, and I spent part of my weekend reading through it. There’s far more to it than I can summarize here, but I thought I’d present the general outline of Gold’s argument below.

The first failures of the UN, writes Gold, came in response to the Arab attacks on Israel in 1948 and Pakistani attacks in Indian-ruled Kashmir in 1947-48. The UN failed to identify and punish the aggressor nations. This created a precent that later encouraged further aggression by developing countries against their neighbors, such as the Chinese invasion of Tibet in 1950. Only rarely did the UN object or intervene.

In the Korean conflict, the UN responded quickly, but that was because the Soviet Union had boycotted the Security Council and the other countries came to swift agreement. When the USSR returned, the US was able to marshal support in the General Assembly, but decolonization would later create an anti-Western majority. It was decisive US action, not any UN action, that responded to the North Koreans.

Unable to stop aggressive behavior by third world states, especially Soviet-aligned ones, the UN then tried intervening on behalf of developing countries caught between the U.S. and USSR, a strategy that ran into trouble in the Congo. The UN then failed to stop the Soviet crackdown against the Hungarian revolution in 1956, while quickly condemning British, French and Israeli action in the Suez war.

This revealed that the UN had an effect on democracies, where it could affect public opinion. However, UN pressure was useless with regard to totalitarian states. Therefore, while ostensibly “neutral,” the UN effectively became a Soviet tool. This led the U.S. to lean on the Organization of American States, not the UN, in the Cuban Missile Crisis—though it did embarrass the USSR in the Security Council.

Far from preventing conflicts, the UN actually helped encourage them in some cases. In the Six Day War, for example, the UN’s compliance with Egypt’s demand to remove UN forces from the Sinai encouraged Nasser to mobilize and provoked Israel’s pre-emptive attack. Security Council Resolution 242, which was meant to encourage negotiations, was undermined by subsequent UN interpretations of it.

In the 1970s, the UN “abandoned its normal ambivalence in global conflicts to come down against Israel,” writes Gold. It passed General Assembly Resolution 3379, the infamous “Zionism is Racism” resolution, which was only one among dozens of resolutions that the UN began passing against Israel as a kind of yearly ritual. Only decades later, in 1992, was Resolution 3379 rescinded.

The end of the Cold War brought new hope for the UN, as it authorized the use of force to remove Saddam Hussein from Kuwait. However, this came after decades of indulgence towards Iraq, its genocide against the Kurdish minority, and its various weapons programs. The UN also failed to act against massive post-Gulf War human rights abuses by the Iraqi government against Shiites and the Marsh Arabs.

In the years that followed, the UN failed to enforce its Gulf War cease-fire resolution. Although it initially enforced the portions dealing with weapons of mass destruction, this mechanism faltered under Secretary-General Kofi Annan, who expanded the corrupt oil-for-food program. Only the U.S. and its allies, acting independently of UN authorization, bothered to enforce the UN’s own resolution.

The worst examples of UN failure in the post-Cold War era, Gold argues, have been the numerous cases in which it has failed to act against genocide in Bosnia, Rwanda, Darfur and elsewhere. All of these cases, he points out, involved Annan in some way or another. Annan’s approach was to treat the perpetrator and the victim equally, creating a false neutrality that gave an effective green light to murder.

This, Gold writes, reinforced the UN’s failure to adjudicate among competing national interests on the basis of a firm set of moral principles. Relativism, in this sense, was deadly. In Rwanda, where Annan headed UN peacekeeping operations, the UN refused to intervene to stop the genocidaires because that would have meant taking sides. In some cases the UN forces actually facilitated the killing.

In Bosnia, the UN soon repeated its mistakes by failing to protect Bosnian Muslims from slaughter by Bosnian Serb forces. It was reluctant to take sides because it was afraid that doing so would undermine its diplomatic leadership. However, it may have taken sides anyway, through its inaction. There is evidence that the UN may have made a deal with Bosnian Serb forces to trade UN hostages for UN inaction.

“It was true,” Gold writes, “that the Bosnian Muslims themselves engaged in war crimes against the Serbs . . . But those facts had little bearing on the immediate danger”—the danger the UN knew about and failed to stop. True impartiality, he argues, would have meant protecting both sides from genocide, not adopting a false even-handedness that placed the source and target of the danger on the same plane.

Finally, Gold describes the UN’s attempt at “institutionalized moral equivalence”—the International Criminal Court (ICC). The original idea, proposed after the Second World War, was to establish an institution that could prosecute and deter atrocities. But the Rome conference that established the ICC in 1998 failed to define “aggression” and did not include terrorism on the list of its “core crimes.”

The Rome Statute was the epitome of false moral co-equivalence, in which Israeli settlements were equated with the worst war crimes; even damage to the environment or “outrages upon personal dignity” were listed as war crimes. The U.S. and Israel voted against the ICC, fearing that it could become a tool for enemies of human rights to haul their citizens into court on spurious pretexts.

There were other reasons to be suspicious of this form of international justice. In 2004, the International Court of Justice (ICJ) ruled against Israel’s security barrier in the West Bank, despite lacking jurisdiction to do so. And Belgian courts allowed cases to be filed against foreign leaders under a universal jurisdiction law until NATO threatened to move its headquarters out of Belgium if the law remained.

In general, these international institutions, and the parties making use of them, have adopted an anti-American line. In effect, they have placed those who try to stop terror and military aggression on the same level as those who foment terror and carry out aggression. In the Middle East, the UN has actually funded, protected and even directly assisted terror organizations such as Hizbollah and Hamas.

In UN institutions, the UN has allowed authoritarian dictatorships to take up positions on the Security Council; it has allowed rights abusers to lead the Human Rights Council; and it has allowed destructive regimes to head committees on disarmament. It is a bureaucracy that is not only inefficient but politically, financially and morally corrupt, a negative force in international affairs.

Gold points out that successful forms of international cooperation outside the UN do exist, such as the Multinational Force and Observers (MNO) that keeps the peace between Israel and Egypt. He suggests an independent alliance based on shared values—not, like the Community of Democracies, a bloc within the UN, but an organization outside the UN itself. Meanwhile, the UN needs a radical overhaul.

I agree with Gold’s recommendations, with one reservation: it is disagreement among democracies, as much as opposition from autocracies, that makes the UN a failure. Perhaps any institution aimed at enforcing general rules, and not at dealing with a specific challenge or threat, would face the same weakness. Rather than a single UN alternative, several issue-based alternatives may be necessary.