Constitutional Opinions: World-Wide Scofflaw
Rabkin, Jeremy
CONST TUTIONAL OPINIONS by Jeremy Rabkin World-Wide Scofflaw B ill Clinton has his own rules. In his understanding, he did not perjure himself when he denied having sex with Monica Lewinsky: She...
...And the longer view should start with the recollection that our founders were not at all so dismissive of international law...
...This is a problem of constitutional dimensions, and not one that the courts can be expected to remedy...
...Yes, we have already relaxed the notion that Congress itself needs to declare war—and this administration has committed troops to potential combat situations in Haiti, Bosnia, and elsewhere without any direct congressional authorization...
...When Iran or a resurgent Iraq or Pakistan invokes this principle against Israel...
...Of course, the Security Council can be deadlocked or maddeningly slow to act...
...Clinton has not even tried to pretend that American lives are at stake in Kosovo...
...Conservatives, especially in the last generation, have taught themselves to despise international law...
...As with so many other Clinton impulses, the bill may be left for others to pay...
...This episode is the culmination of a trend in Clinton's foreign policy...
...both deserve attention...
...What do we say when China invokes this against neighboring states...
...The closest precedent is the imposition of a no-fly zone in Iraq on behalf of Kurds being massacred by Saddam Hussein in the aftermath of the Gulf War...
...Saddam then cancels all further inspections and forces the withdrawal of U.N...
...Or at least it will make us feel better...
...It may sound unimpressive in Moscow or Peking, but perhaps the real audience for such pronouncements was always in Cleveland and Kansas City...
...Our policy has aimed not just at keeping other great powers from meddling in this hemisphere (as T.R...
...If not, what international norm can we really invoke in Kosovo...
...dam Hussein ever since, and France has great influence on Germany and other NATO "allies...
...But are we better off with no international standard at all...
...If it is just "sending a message," is it a permissible means of diplomatic communication under current understandings of international law...
...When Bush sent troops to Panama, he claimed to be acting at the request of Panama's elected president (whom dictator Manuel Noriega had prevented from taking office...
...The Charter prohibits military action against another sovereign state, except for purposes of immediate self-defense (or in defense of an ally that has already been attacked...
...Nearly a million ethnic Tutsis were slaughtered in a genuinely genocidal campaign by the Hutu government in Rwanda in 1994, while the United Nations sat passively on the sidelines...
...The American Spectator • May 1999 45...
...Still, the suggestion that such a momentous decision could be delegated to a foreign diplomat was of a piece with the rest of the venture...
...Nor, for all the brutality of Serb forces in Kosovo, was there anything so systematic as genocide going on...
...If we now believe that international law permits bombing campaigns to preempt anticipated oppression, we are setting a very dangerous precedent...
...But since World War II, we have assumed wider responsibilities...
...sought to do) but at keeping them in check in other regions, too...
...When Reagan dispatched troops to Grenada, he claimed with at least some plausibility to be acting in defense ofAmerican nationals on the island...
...here is, however, no general right T to make "humanitarian intervention" under existing international law...
...France has intrigued against U.N...
...A sizable number of NATO states were opposed to the U.S...
...that bombing is something we can turn on or off with no sense that the credibility or honor of the United States has been committed...
...The most serious domestic issues turn on just this point...
...In launching air strikes against Serbia, he operated again on Clinton rules: Just because Serbian President Milosevic got a sustained slamming from American bombers did not mean that the United States was entering into a war...
...sanctions on Sad-44 NATO, supposedly a defense alliance, was not answering Serb attacks on any of its members...
...The official State Department explanation was that the U.S...
...C an the president really delegate away his own constitutional responsibilities as commander-inchief...
...Or where the secretary of state can say she stands by the president's assertions, then pay no price when they turn out to be lies and then start all over with a new set of dubious assertions about the president's intentions...
...The most that could be said was that NATO anticipated that there might be much greater killing if Milosevic were not called to account—by bombing...
...Charterwere duly ratified by two-thirds of the Senate and not superseded by the defense provisions of the NATO treaty...
...In his understanding, he did not perjure himself when he denied having sex with Monica Lewinsky: She had had sex with him...
...Call it "therapeutic bombing...
...Saddam Hussein won't cooperate with U.N...
...We don't disarm any terrorists, but we prove that, if provoked, we can destroy an aspirin factory in Sudan...
...Or against Jordan...
...Clinton insisted that the American commitment to a "peaceful and united Europe" could, at virtually that level of abstraction, make it necessary to launch a particular bombing campaign against one small country at the very margin of Europe...
...If not, is there any basis to characterize sustained bombing as something other than "making war...
...Actually, our Balkan policy is one more expression of this president's dominant impulse—lawlessness...
...Yet we must trust him with the lives of American soldiers, and trust him to deploy the credibility of the United States in setting dangerous new precedents...
...The Constitution itself stipulates that Congress should have power to "punish offences against the law of nations" (as international law was then known) and even the Rehnquist Court acknowledged, not long ago, that "the United States has a vital national interest in complying with international law" (Boos v. Barry, 1988...
...Can we really rely on NATO to deter less respectable states from following its example...
...There are legal concerns here on two levels, domestic and international, and JEREMY RABKIN is a professor of government at Cornell University...
...Yet it is still a remarkable novelty to leave the initial decision on whether to commit U.S...
...But does that make NATO an adequate replacement...
...monitors and the collapse of the whole inspection regime in place since the Gulf War...
...NATO, which is supposed to be a defense alliance, was not responding in any way to a Serb attack on NATO members...
...war in the Gulf even in 1991...
...Security Council...
...44 The American Spectator May r 9 9 9 strenuously denying that the action was undertaken at the behest of Albanian rebels in Kosovo—whose claims to independent statehood the United States has, in fact, emphatically denied...
...But the nonaggression provisions of the U.N...
...Now, it is true that the U.S...
...That'll show 'em...
...force to the determinations of an international bureaucrat...
...Particularly in the early part of this century, we frequently sent troops or gunboats to unstable placesin Latin America and the Caribbean to protect American property or enforce American ideas of order—when, as Theodore Roosevelt put it, chaotic local governments had "violated the rights of the United States or had invited foreign aggression to the detriment of the entire body of American nations...
...Perhaps this was bluster...
...But as it is a very considerable slide from peacekeeping to bombing, it is an incredible slide from trusting the president to trusting a Spanish official in Brussels on decisions that could well involve us in serious war...
...You might think that Clinton is becoming addicted to bombing, perhaps as a substitute for other forms of release...
...Bomb him...
...Nor was NATO in any way authorized by the Security Council to launch a bombing campaign...
...This is an understandable legacy of the 1980's, when liberals invoked "international law" against Reagan's efforts to counter the Sandinista threat in Central America...
...Invoking this central norm, we rallied broad international condemnation of North Korean aggression in 1950, Soviet aggression in Afghanistan in 198o, and Saddam Hussein's invasion of Kuwait in 199o...
...No one has any reason to trust this president very far...
...What do we say when Russia launches a bombing attack on former Soviet republics where ethnic Russians (or some other ethnic minorities) claim to be victims (as some are and more will be) of state-sponsored terror...
...More bombing...
...This administration has a particular penchant for couching its decisions as somehow determined by others, or as not decisions at all, but simply developments that have unfolded in the passive voice (as in, "the FBI files were discovered in the White House" or "the billing records were lost in the White House...
...Clinton has unloosed an air campaign while The war on Yugoslavia is an international crime...
...Or do we expect others to bow to the moral superiority of NATO, in the understanding that it is, as NATO Secretary General Javier Solana said last January, "more than a military alliance for the collective defense of its members" but rather "a symbol of how countries can strive together for peace, security, and stability across a whole continent...
...Back of the whole thing, though, is the assumption that we aren't involved in serious war...
...That was explicitly authorized by the U.N...
...American forces did serve under the tactical command of British generals in World War II...
...It appears that officials of the Clinton administration in Washington did give the final approval to the actual bombing campaign, which remained largely under the operational control of American military officers...
...The issues of international law come down to one simple question: Is it permissible to make war on a country because you disapprove of how its government treats its own people...
...The latter have been relatively neglected yet they are closely connected to the internal, constitutional questions...
...weapons inspectors...
...embassies with threats by Osama bin Ladin's terror network...
...A terrorist attack on U.S...
...Of course this has not guaranteed peace, and the general principle has not been sufficient to resolve many tangled disputes about when military action can be justified for "self-defense...
...Yet conservatives, above all, should be capable of taking a longer view...
...Do a little more cosmetic bombing—to prove that while we may be defeated, we are not humbled...
...Can we rely on NATO to ride to the rescue...
...Weeks before the bombing began, it was announced that Secretary General Solana had been given authority to order bombing of Serbia whenever he judged it appropriate—without seeking direct authorization from the council of NATO governments...
...Thus the United States joined in establishing the Charter of the United Nations as a new grounding for international law...
...was acting on the basis of "humanitarian intervention...
...Past presidential rhetoric is not a treaty commitment...
...has always insisted on its own version of international law and has not always been scrupulously non-interventionist...
...That is a convenient assumption for this administration, where the president can grudgingly concede that he may have lied under oath but point out that he has frequently told the truth...
Vol. 32 • May 1999 • No. 5
