Should We Risk Lives to Save Lives?

by Diane F. Orentlicher

Until mid-October, it seemed likely that humanitarian intervention would play a prominent, if bounded, role in the post-Cold War foreign policy of the United States. With the collapse of the Soviet Union, no single nation presents a vital threat to US security, but the proliferation of failed states and ethnic conflicts pose an overall threat to global stability. At the same time, these largely internal crises have spawned massive human suffering - and growing claims on our national conscience.

Yet the debacle in Somalia demonstrated how little thought the Administration had given to defining its objectives there - an astonishing failure in light of the risks to which US soldiers were exposed. Worse, while risking American lives for such vague and open-ended goals as "nation-building" in Somalia, the Administration has failed to intervene in Bosnia, where "ethnic cleansing" evokes Nazi atrocities and where the United States has demonstrably greater strategic interests.

Its position in respect of Bosnia is particularly hard to justify; unlike Somalia, where relevant principles for intervention have been developed as they have been applied, the situation in Bosnia is governed by a clear dictate of international law and conscience. After World War II, the international community made a commitment, both moral and legal, to take responsibility for stopping genocide if ever, and wherever, it recurred. We would not again debate our responsibility to act, finding excuse for inaction in narrow conceptions of our national interest. We would act.

But in a perverse inversion of this injunction, Secretary of State Warren Christopher urged a new doctrine: unless we can justify intervention in terms of narrow self-interest, we can turn away from genocide, however gruesomely portrayed in the daily media. The clearest expression of this view came in July 1993, when Mr. Christopher declared that the United States had done "all it can consistent with our national interest" to stop the slaughter in Bosnia. By then, the State Department had determined that genocide was being committed in Bosnia.

To all appearances, the Administration's foreign policy lacked any guiding principle.

If nothing else, the October casualties in Somalia sounded the proverbial wake-up call, focusing public attention on the need for clear standards governing the use of military force in the unfamiliar landscape of post-Cold War foreign policy. More particularly, in light of the humanitarian nature of operations undertaken or contemplated in Somalia, Haiti, and Bosnia, the question of appropriate conditions for humanitarian intervention and for participation in UN peacekeeping missions aimed at alleviating human suffering merit our attention.

The Legal Framework

International law at times seems hopelessly irrelevant to contemporary challenges in foreign relations, and the law in this area is still evolving. Still, established principles go a long way toward addressing central issues in the domestic policy debate.

The UN Charter generally prohibits both member states and the United Nations itself from deploying military forces to the territory of another state. Designed to protect states' territorial and political sovereignty, these prohibitions can be surmounted in only two circumstances: 1) when the host state, or relevant parties, consent to the deployment; and 2) in response to a threat to international peace, a breach of the peace, or an act of aggression (as noted below, this second circumstance comprises two distinct situations).

In the former case, which has been the basis of UN peacekeeping operations, consent obviates the concern about sovereignty underlying the general prohibition against intervention. In large part because the second basis for military action entails a significant encroachment on sovereignty, the UN Charter erects substantial barriers to its use. Military force is permitted in only two circumstances: 1) as an act of self-defense, either individual or collective, in response to an armed attack by another state; and 2) in situations where the Security Council has determined the existence of a threat to international peace, a breach of the peace, or an act of aggression, and has authorized (or, in theory, even ordered) military measures to maintain or restore international peace and security.

Even when it has determined the existence of a threat to international peace, the Council is not free to authorize military action unless it also concludes that non-military measures, such as economic sanctions, would be inadequate or have already proved inadequate. Further, the Council may authorize only those military measures that are "necessary" to restore peace and security, in effect requiring that authorized means be proportionate to legitimate ends.

But while the UN Charter establishes significant barriers to the use of military force, it does not preclude humanitarian intervention. It is doubtless an exaggeration to say that a "threat to the peace" is whatever the Council says it is - but it's not much of an exaggeration. More to the point, legal experts agree that some (though few) humanitarian crises may threaten international peace and warrant intervention.

In an otherwise nebulous area, international law draws one bright line: when genocide is being practiced or threatened, the international community has a duty to end the crime's further sweep, even to the point of military intervention. The Genocide Convention, which the United States has ratified, requires not only that states punish genocide, but also that they act to suppress the crime when it occurs. The Convention seems to contemplate the possibility of military intervention, authorizing states to "call upon the competent organs of the United Nations to take such action under the Charter . . . as they consider appropriate for the prevention and suppression of acts of genocide. . . ."

While demanding, the duty to stop genocide has narrow scope; few human rights disasters - however atrocious - pass the high threshold established by the definition of this international crime, which requires an intent to destroy certain groups, in whole or in part, "as such." But the practices that constitute "ethnic cleansing" are one of the rare instances since World War II in which these crimes have been committed. In a preliminary decision on a case against Serbia and Montenegro brought by the Bosnian government, the International Court of Justice came close to saying that the defendants were committing genocide in Bosnia. Significantly, too, when the UN Security Council established an international tribunal for crimes committed during the Balkan conflict, it gave the tribunal jurisdiction over genocide.

Apart from genocide, international law provides little guidance for determining when an essentially internal humanitarian disaster threatens international peace. Freed from the Cold War restraints that long inhibited it from authorizing enforcement action, the Security Council has, however, recently begun to flex its interpretive muscles in this area. Its resolutions have sketched a rudimentary jurisprudence of circumstances in which a seemingly internal humanitarian crisis might justify enforcement action. These resolutions indicate that the Council's favored formula for justifying humanitarian intervention is to cite a link between massive human suffering and international peace, and then authorize an operation to deliver humanitarian relief.

In April 1991, the Council laid the groundwork for this approach when it adopted a resolution finding that the "consequences" of Iraq's repression of civilians - these included "massive flows of refugees towards and across international frontiers" and "cross border incursions" - posed a threat to international peace and security, and demanding that Iraq allow international humanitarian agencies access to "all those in need of assistance in all parts of Iraq." In December 1992, the Security Council adopted a resolution finding that "the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security." Utilizing its enforcement powers, the Council authorized member states to "use all necessary means" - presumably including military measures - to establish "a secure environment for humanitarian relief operations in Somalia. . . ." The Council had previously adopted a similar resolution on Bosnia.

This approach has intuitive appeal: it identifies a narrow scope for UN intervention, limiting the goals to an impartial, humanitarian service - and thereby minimizing the dangers UN agents would face if their goals were ostensibly partisan. Still, the strategy is fraught with peril. Once UN personnel are on the ground in a conflictive situation, they can and often do become targets of attack. When this happened in Somalia, UN troops were drawn into that country's civil conflict, mounting a series of military offensives to capture those whom the UN judged responsible for the attacks. In Bosnia, the presence of UN humanitarian personnel eventually became an excuse for some governments' failure to approve more aggressive action against perpetrators of "ethnic cleansing," which, they said, would risk retaliation against their nationals in Bosnia.

It was perhaps inevitable that the dangers faced by UN missions would increase as the organization moved from the familiar role of peacekeeping into the largely uncharted realm of enforcing peace. While the consent required for classic peacekeeping operations minimizes (though scarcely eliminates) the risks to participants, peace-enforcement operates against recalcitrant parties. In the short-term, moreover, the UN's dearth of experience in this area may enlarge the dangers faced by participants in enforcement operations - or so the UN's miscalculations in Somalia suggest. These factors underscore the need for the Security Council to act cautiously in considering enforcement measures. Indeed, the casualties in Somalia suggest that what was long regarded as emblematic of the UN's weakness - its characteristic restraint in the use of force - may in fact be the hallmark of wisdom. Still, the international community can ill-afford to ignore the challenges of maintaining peace. As one after another nation seems to implode, the world is increasingly in need of a global cop. And with no nation willing to take on that job itself, each one has an interest in supporting effective multilateral mechanisms.

International Law and US Interests

The legal framework sketched above has several implications for US policy: First, the law of the UN Charter places significant restraints on US options, allowing the United States to deploy military missions for purely humanitarian missions only 1) with the consent of the host state or relevant parties (through, for example, participation in UN peacekeeping operations); or 2) when the UN Security Council has determined the existence of a threat to international peace and has authorized enforcement action. Even then, the United States may use only that force which is proportionate to the authorized goal.

A more serious regard for this last requirement might have prevented the casualties in Somalia resulting from the UN-sponsored operation's repeated efforts to capture clan leader Mohammed Farah Aidid. While the deaths of 18 US soldiers during a single search-and-seizure operation in early October received considerable attention, some 300 Somalis were reportedly killed in the same raid; many were civilians. By any measure, this was disproportionate force.

Still, international law does more than circumscribe US options; it also establishes obligations. As a permanent member of the Security Council, the United States arguably has a duty to try to get the Council to take appropriate action whenever there is a threat to international peace and security, including situations in which the threat is posed by genocide.

While the framework established by international law goes some distance toward guiding US policy in respect of humanitarian intervention, it still leaves large questions of policy unanswered. When, for example, should the United States participate in UN peacekeeping operations that have a humanitarian purpose? And when should the United States contribute troops to coercive humanitarian operations authorized in accordance with international law?

These questions must be addressed in light of the fact that the decision to deploy troops engages domestic as well as international responsibilities. The decision to place soldiers in harm's way is one that the Constitution, legislation, and national tradition hedge with safeguards of democratic accountability. The Framers regarded the decision to go to war to be a fundamental responsibility of citizenship, and subsequent generations have repeatedly affirmed their vision. President Clinton discovered just how deeply Americans regard this principle when 18 soldiers died in the October operation in Mogadishu. Although the American public had approved the original deployment of troops to end starvation in Somalia, it revolted when US lives were expended for a purpose it had never debated, much less approved - capturing General Aidid.

But if citizens bear responsibility for debating and approving military commitments abroad, it remains the duty of the President to elaborate in the first instance a vision of US security interests, and then to seek public support for any contemplated military deployment in pursuit of those interests. The success of any operation deployed by the Commander-in-Chief may well turn on such support; if the President has not developed public support for the goals of a military intervention in advance of deployment, he should expect to face demands for disengagement when casualties begin to mount. A resulting withdrawal, if precipitous, may imperil those whom the mission sought to aid.

For reasons already suggested, the President bears a special responsibility to build public support at home for effective action to stop genocide. Yet the Clinton Administration, like the Bush Administration before it, has not only failed to make the case for intervention in Bosnia to the American public; it has deliberately acted to dampen public support for intervention. This effort was evident, for example, when the Administration decided that Secretary of Defense Les Aspin should drop plans to visit Sarajevo in the Fall, fearing that Aspin's visit might raise public expectations of US action in Bosnia. It has been evident, as well, in the Administration's determination to avoid the word "genocide" in its public pronouncements on the situation in Bosnia, which it has instead sought to cast as a tragic internal conflict on which the United States could have scant impact.

Short of situations involving genocide, there are few settled principles governing US participation in humanitarian military operations permitted by international law. As the nation weighs this question, two overarching principles should guide public debate. First, the risk to which US troops are exposed should be commensurate with the magnitude of national interests justifying intervention. Second, and of independent importance, the United States should be guided by a due sense of its own responsibility in respect of the relevant country or circumstance.

Matching interests to risk. The first consideration is an axiom of domestic politics. The public will more readily abide casualties in an operation, like Desert Storm, that is widely thought to protect vital security interests of the United States than in an operation, such as the mission to capture General Aidid, which serves no readily apparent US interest.

Americans' famously low tolerance for military casualties might appear to rule out US participation in operations justified solely on humanitarian grounds, since even a minimal risk to American troops would lack justification in the "national interest." In fact, however, the view that US interests are served by promoting cherished national values runs deep in American tradition. If Americans believe that ending starvation in Somalia serves national interests, it does. (The father of one US soldier killed in Somalia told a reporter that he could not imagine his son having risked his life for a worthier purpose than ending starvation.) To the extent that national values may inspire foreign intervention, however, any deployment of US troops remains constrained by the principles of international law outlined above.

Acting responsibly. The principle that risks associated with contemplated military engagements should correspond to national interests must be tempered by the United States' responsibilities toward other nations. Because US policy has a unique impact on many countries, this principle may have a significant bearing on US policy decisions.

In some situations, American influence may be such that the United States cannot fairly claim the option of remaining disengaged: its very passivity - even its public claim of disinterest - can have a decisive impact. Consider, for example, US policy shifts in respect of Bosnia. Each time US leaders have broadcast their intention to remain on the sidelines in the face of Balkan atrocities, they have emboldened Serb forces to intensify their aggression. Secretary Christopher's public claim that the United States had done "all it can consistent with our national interest" to end the slaughter in Bosnia was immediately followed by intensified Serb aggression, accompanied by brazen assertions of Serb contempt for America's loss of nerve. Conversely, past threats of intervention by President Clinton have typically eased the aggression, though these effects have often been as short-lived as the President's apparent resolve.

Taking responsibility for the consequences of policy choices also requires the United States to consider the likely impact of a decision regarding one country on developments in other nations. When casualties in Mogadishu led to calls for an end to US participation in the UN's Somalia operation, delinquents in other countries slated for US troop deployment took heart. In short order, Haitian mobs opposed to a UN-brokered accord that would restore President Jean-Bertrand Aristide to office threatened to make Haiti "another Somalia," and prevented US participants in the UN peace-building operation from disembarking in Port-au-Prince. Within days, Serb forces resumed shelling Sarajevo after a prolonged lull in fighting (the Serbian siege of Sarajevo had eased in August after President Clinton threatened NATO air strikes). When the shelling resumed in mid-October, a senior UN official told The New York Times that Serb leaders had "seen what happened in Somalia, and they're betting that Clinton won't touch Bosnia with a barge pole." If nothing else, this sequence demonstrated that a poorly-conceived US intervention in one nation can have a devastating effect on others.

The United States' past role in a country may also have significant bearing on its responsibilities vis-ý-vis a contemporary crisis there. The observation that the United States has no vital interest in a particular country must at times yield to the principle that the United States cannot responsibly walk away from a country whose destiny it has shaped, at least when it has played a vital role in shaping the current crisis.

But if its past conduct requires the United States to remain engaged in addressing a foreign state's internal crisis, "acting responsibly" may at times mean that US troops should not participate in an otherwise justified humanitarian operation there. Past US involvement in a country can distort the impact of American troops' participation in, for example, a UN peacekeeping operation by vitiating the appearance of neutrality essential to the mission's success. Further, precisely because of their unique profile, US troops may be especially vulnerable to attack. Aggressors the world over understand that the American public has little stomach for US casualties, and some may conclude that the best way to rid their country of an unwanted operation is to attack US participants. Apprehension of a public backlash in the wake of casualties may lead US commanders to avoid enforcement action even when it is called for.

Thus consideration of the United States' responsibilities in a nascent system of global policing may lead to an ironic conclusion: at times, the United States can best support humanitarian operations by not contributing troops to them. Still, the United States should not shrink from tackling global challenges that affect American interests, however indirectly. If the United States does not contribute troops to an operation that advances a common interest of the international community, it should provide the type of support for which it may be best suited, such as logistical and financial backing. Above all, the United States should provide clear-sighted leadership in defining appropriate occasions for humanitarian intervention - notably including situations of genocide - as well as situations warranting restraint.