There is a regime of international law and international order, based on the UN Charter and subsequent resolutions and World Court decisions. This regime bans the threat or use of force unless it is explicitly authorised by the Security Council after it has determined that peaceful means have failed, or in self-defence against "armed attack" (a narrow concept) until the Security Council acts.
But there is at least a tension, if not an outright contradiction, between the rules of world order laid down in the UN Charter and the rights articulated in the Universal Declaration of Human Rights. The charter bans force violating state sovereignty; the declaration guarantees the rights of individuals against oppressive states. The issue of "humanitarian intervention", used to justify the US/Nato intervention in Kosovo, arises from this tension. One view on this matter was expressed in the New York Times by Jack Goldsmith, a specialist in international law at Chicago law school. Critics of the Nato bombing "have a pretty good legal argument", he said, but "many people think [an exception for humanitarian intervention] does exist as a matter of custom and practice".
If such an exception indeed exists, it must be premised on the "good faith" of those intervening. And the assumption of good faith must be based not on their rhetoric but on their record, in particular their adherence to the principles of international law, World Court decisions, and so on. Iran, for example, offered to intervene in Bosnia to prevent massacres at a time when the west would not do so. This was dismissed with ridicule. A rational person, however, would ask further questions. Is the Iranian record of intervention and terror worse than that of the US? How should we assess the good faith of the only country to have vetoed a Security Council resolution calling on all states to obey international law? What about its historical record? Unless such questions are prominent on the agenda, an honest person will dismiss the discourse as mere allegiance to doctrine.
Before the present bombings began there had already been a humanitarian catastrophe in Kosovo, overwhelmingly attributable to Yugoslav military forces. The main victims have been ethnic Albanian Kosovars.
In such cases, outsiders have three choices: (1) try to escalate the catastrophe; (2) do nothing; (3) try to mitigate the catastrophe.
The choices are illustrated by other contemporary cases. Let's keep to a few of approximately the same scale, and ask where Kosovo fits into the pattern.
Colombia. Here, according to State Department estimates, the annual level of political killing by the government and its paramilitary associates was about at the level of Kosovo before the bombing, and refugee flight primarily from their atrocities is well over a million. Colombia has been the leading western hemisphere recipient of US arms and training as violence increased through the 1990s, and that assistance is now increasing, under a "drug war" pretext dismissed by almost all serious observers. The Clinton administration was particularly enthusiastic in its praise for President Cesar Gaviria, whose tenure in office was responsible for "appalling levels of violence", according to human rights organisations, even surpassing his predecessors.
In this case, the US reaction is (1): escalate the atrocities.
Turkey. By very conservative estimates, Turkish repression of Kurds in the 1990s falls in the category of Kosovo. It peaked in the early 1990s; one index is the flight of more than a million Kurds from the countryside to the unofficial Kurdish capital, Diyarbakir, from 1990 to 1994, as the Turkish army was devastating the countryside. Two records were notable in 1994: it was, according to one reporter, Jonathan Randal, at the scene, "the year of the worst repression in the Kurdish provinces" of Turkey, and the year when Turkey became "the biggest single importer of American military hardware and thus the world's largest arms purchaser". When human rights groups exposed Turkey's use of US jets to bomb villages, the Clinton administration found ways to evade laws requiring suspension of arms deliveries.
Again, the example illustrates (1): try to escalate the atrocities.
Note that both Colombia and Turkey explain their (US-supported) atrocities on grounds that they are defending their countries from the threat of terrorist guerrillas. As does the government of Yugoslavia.
Laos. Every year thousands of people, mostly children and poor farmers, are killed in the Plain of Jars in northern Laos, the scene in the 1960s and 1970s of what appears to have been the heaviest bombing of civilian targets in history, and arguably the most cruel. The deaths are from "bombies", tiny anti-personnel weapons, far worse than landmines: they are designed specifically to kill and maim, and have no effect on trucks, buildings, and so on. The plain was saturated with hundreds of millions of these devices, which have a failure-to-explode rate of 20-30 per cent according to the manufacturer, Honeywell. The numbers suggest either remarkably poor quality control or a policy of murdering civilians by delayed action.
These were only a fraction of the technology deployed, including advanced missiles to penetrate caves where families sought shelter. Current annual casualties from "bombies" are estimated from hundreds a year to "an annual nationwide casualty rate of 20,000", more than half of them deaths, according to the veteran Asia reporter Barry Wain of the Wall Street Journal. A conservative estimate, then, is that the crisis this year is approximately comparable to Kosovo before the bombing, though children account for a far higher proportion of the deaths.
There have been efforts to publicise and deal with the humanitarian catastrophe. The British-based Mine Advisory Group is trying to remove the lethal objects, but the US, according to British press reports, refuses to provide its specialists with "render harmless procedures" that would make their work "a lot quicker and a lot safer". These remain a state secret, as does the whole affair in the United States. The Bangkok press report a very similar situation in Cambodia, particularly the eastern region where US bombardment from early 1969 was most intense.
In this case, the US reaction is (2): do nothing. And the reaction of the media and commentators is to keep silent, following the norms under which the war against Laos was designated a "secret war" - meaning well known but suppressed, as also in the case of Cambodia from March 1969. The level of self-censorship was extraordinary then, as it is now.
Kosovo. The threat of Nato bombing led to a sharp escalation of atrocities by the Serbian army and paramilitaries, and to the departure of international observers, which had the same effect. Nato's supreme commander, General Wesley Clark, declared that it was "entirely predictable" that Serbian terror and violence would intensify after Nato's bombing. Kosovo is therefore another illustration of (1): try to escalate the violence, with exactly that expectation.
To find examples illustrating (3) is all too easy, at least if we keep to official rhetoric. The major recent academic study of "humanitarian intervention", by Sean Murphy, reviews the record after the Kellogg-Briand pact of 1928 which outlawed war, and then since the UN Charter, which strengthened and articulated those provisions. In the first phase, he writes, the most prominent examples of "humanitarian intervention" were Japan's attack on Manchuria, Mussolini's invasion of Ethiopia, and Hitler's occupation of parts of Czechoslovakia. All were accompanied by highly uplifting humanitarian rhetoric. Japan was going to establish an "earthly paradise" as it defended Manchurians from "Chinese bandits", with the support of a leading Chinese nationalist, a far more credible figure than anyone the US was able to conjure up during its attack on South Vietnam. Mussolini was liberating thousands of slaves as he carried forth the western "civilising mission". Hitler announced Germany's intention to end ethnic tensions and violence, and "safeguard the national individuality of the German and Czech peoples". The Slovakian president asked Hitler to declare Slovakia a protectorate.
Another useful intellectual exercise is to compare those obscene justifications with those offered for interventions, including "humanitarian interventions", in the post-UN Charter period.
In that period, perhaps the most compelling example of (3) is the Vietnamese invasion of Cambodia in December 1978, terminating Pol Pot's atrocities. Vietnam pleaded the right of self-defence against armed attack, one of the few post-Charter examples when the plea was plausible: the Khmer Rouge or Democratic Kampuchea (DK) regime was carrying out murderous attacks in border areas. The US press condemned the "Prussians" of Asia for their outrageous violation of international law. They were harshly punished for the crime of having terminated Pol Pot's slaughters, first by a (US-backed) Chinese invasion, then by US imposition of extremely harsh sanctions. The US recognised the expelled DK as the official government of Cambodia, because of its "continuity" with the Pol Pot regime, the State Department explained. Not too subtly, the US supported the Khmer Rouge in its continuing attacks in Cambodia.
Despite the desperate efforts of ideologues to prove that circles are square, there is no serious doubt that the Nato bombings further undermine what remains of the fragile structure of international law. The US made that entirely clear in the discussions leading to the Nato decision. Apart from the UK (by now, about as much of an independent actor as the Ukraine was in the pre-Gorbachev years), Nato countries were sceptical of US policy. Today, the more closely one approaches the conflicted region, the greater the opposition to Washington's insistence on force, even within Nato (Greece and Italy). France had called for a UN Security Council resolution to authorise deployment of Nato peacekeepers. The US flatly refused, insisting on "its stand that Nato should be able to act independently of the United Nations", State Department officials explained. The US refused to permit the "neuralgic word 'authorize' " to appear in the final Nato statement, unwilling to concede any authority to the UN Charter and international law; only the word "endorse" was permitted (see Jane Perlez, writing in the New York Times, 11 February). Similarly, the bombing of Iraq was a brazen expression of contempt for the UN, even the specific timing, and was so understood. And the same is true of the destruction of half the pharmaceutical production of a small African country a few months earlier.
It was during the Reagan years that defiance of international law and the UN Charter became entirely open. The highest authorities explained with brutal clarity that the World Court, the UN and other agencies had become irrelevant because they no longer followed US orders, as they did in the early postwar years. Under Clinton, the defiance of world order has become so extreme as to be of concern even to hawkish policy analysts. In the current issue of the leading establishment journal, Foreign Affairs, Samuel Huntington warns that, in the eyes of much of the world (probably most), the US is "becoming the rogue superpower", considered "the single greatest external threat to their societies". Realist "international relations theory", he argues, predicts that coalitions may arise to counterbalance the rogue superpower. On pragmatic grounds, then, the present US stance should be reconsidered. Americans who prefer a different image of their society might call for a reconsideration on other than pragmatic grounds.
Where does that leave the question of what to do in Kosovo? It leaves it unanswered. The US has chosen a course which, as it explicitly recognises, escalates atrocities and violence ("predictably", as Clark said), a course that also strikes yet another blow against the regime of international order, which does offer the weak at least some limited protection from predatory states. As for the longer term, consequences are unpredictable.
A standard argument is that we had to do something: we could not simply stand by as atrocities continued. That is never true. One choice, always, is to follow the Hippocratic principle: "First, do no harm." If you can think of no way to adhere to that elementary principle, then do nothing. There are always ways that can be considered. Diplomacy and negotiations are never at an end.
The right of "humanitarian interven-tion" is likely to be more frequently invoked in future - maybe with justification, maybe not - now that cold war pretexts have lost their efficacy. So it may be worthwhile to listen to a highly respected commentator such as Louis Henkin, professor emeritus of international law at Columbia University. In a standard work on world order, he writes that the "pressures eroding the prohibition on the use of force are deplorable, and the arguments to legitimise the use of force in those circumstances are unpersuasive and dangerous . . . Violations of human rights are indeed all too common, and if it were permissible to remedy them by external use of force, there would be no law to forbid the use of force by almost any state against almost any other. Human rights, I believe, will have to be vindicated, and other injustices remedied, by other, peaceful means, not by opening the door to aggression and destroying the principle advance in international law, the outlawing of war and the prohibition of force."
Such principles do not automatically solve particular problems. Each issue has to be considered on its merits. For those who do not adopt the standards of Saddam Hussein, there is a heavy burden of proof to meet in threatening or using force in violation of the principles of international order.
Perhaps the burden can be met, but that has to be shown, not merely proclaimed with passionate rhetoric. The consequences of such violations have to be assessed carefully - in particular, what we understand to be "predictable".
The writer is professor of linguistics at Massachusetts Institute of Technology. His books include "Human Rights and American Foreign Policy" (1978) and "World Orders, Old and New" (1994). This piece first appeared in longer form on the website of "Z magazine" (www.zmag.org) and will also appear in a forthcoming issue of the journal