Summary

The history of US diplomacy reflects the evolution of the national values of democracy, human rights, and the rule of law as core principles of US foreign policy. These constitutional values have a moral context, but in the strategic application of military force they must be tempered by the practicality of realpolitik.

Issues of democracy are complicated by the eroding concept of sovereignty, runaway self-determination, and the egregious violation of human rights. Innovative concepts of universal sovereignty and national home regimes offer alternatives to traditional sovereignty, but there is no substitute for the rule of law to protect the rights of minorities from the tyranny of the majority.

The Just War Tradition has provided moral principles relating to the use of force that complement national values. The Just War prerequisites for going to war are competent authority, just cause, and right intention; those requirements for warfighting are discrimination and proportionality. At the core of Just War is a moral principle inherited from the code of chivalry which is at the foundation of military legitimacy and civil-military relations: war should not harm those who do not make war.

The Geneva Conventions provide the primary legal standards for human rights in wartime, but peacetime standards are not so well defined. International standards for human rights in peacetime do not have the effect of law and there are inadequate enforcement mechanisms at the international level. Nevertheless, human rights are even more important to legitimacy in operations other than war than in warfighting.

The legitimacy of operations other than war requires that US military personnel understand the spirit as well as the letter of the law. That spirit is found in the Judeo-Christian heritage of our nation, best expressed in the golden rule. The professional values of duty, loyalty, integrity, and selfless service require an altruistic commitment to promote democracy, human rights, and the rule of law.

Notes

1. Henry Kissinger, Diplomacy (New York: Simon and Schuster, 1994). Quincy Wright has cited the just war tradition and what he saw as a general trend toward humanism and tolerance (with total war a conspicuous exception) to illustrate how values have been an important ingredient in legitimizing warfare. Quincy Wright, A Study of War (Chicago: University of Chicago Press, 1942,1971), pp.157-158; 307-309.

2. Ibid. at p. 65.

3. Ibid. at p. 64.

4. Ibid. at p. 32.

5. Ibid. at p. 33.

6. Ibid. at p. 437.

7. Ibid. at p. 477.

8. Ibid. at pp. 648, 649.

9. Ibid. at p. 655.

10. Ibid. at pp. 698, 699.

11. Ibid. at pp. 759, 772.

12. Quincy Wright, A Study of War, n. 1 supra, pp. 4, 5, 839-848.

13. Charles S. Maier, 'Democracy and Its Discontents', Foreign Affairs (July/August 1994), pp. 48, 54, 61-63. For a related concept developed by Gidon Gottlieb, see infra n. 28.

14. An outline of Islam is provided in the appendix (pp. 303-306) to the Operational Law Handbook (JA 422, 1993) prepared by the Center for Law and Military Operations and the International Law Division at The Judge Advocate General's School, US Army, Charlottesville, VA (hereinafter OPLAW Handbook).

15. Judith Miller discusses the threat of Islamic fundamentalism to individual liberty in 'The Challenge of Radical Islam', Foreign Affairs (Spring 1993), p. 43.

16. John Lukacs describes the proliferation of self-determination in Eastern Europe as 'populist nationalism', and considers it a danger to the human rights of ethnic and religious minorities: 'This is, of course, yet another manifestation of the potential tyranny of the majority - which as Tocqueville observed, is the great danger of democratic societies.' 'The End of the Twentieth Century', Harpers (January 1993), pp. 39, 54. See also articles by Huntington and Kaplan at n. 9 to Chapter 3.

17. Gidon Gottlieb, Nation Against State (New York: Council on Foreign Relations Press, 1993), at p.

18. Robert Cullen has observed, 'The ultimate collective right... is the right to create an independent state.' Cullen urges US foreign policy be 'focused firmly on individual rather than collective rights'. 'The Human Rights Quandary', Foreign Affairs (Winter 1992-93), pp. 79,83-84. Quincy Wright cited Alexander Hamilton in The Federalist # 31 on the tendency of state governments 'to encroach upon the rights of the Union' rather than the reverse. To equalize the tendencies of states to dissolve unions Wright argued that 'world authority must guarantee basic liberties within states'. Wright, supra n. 1, footnote on pp. 352-353; also pp. 909-911. Henry Grunwald has reaffirmed Lincoln's commitment to individual rights and the preservation of the union as the best safeguard for fair and stable government -Henry Grunwald,'Memorandumto Woodrow Wilson', Time, 14 November 1994, p.104.

19. In Ethnic America, Thomas Sowell has traced the history of major ethnic groups in America and concluded that discrimination diminished as ethnic groups assimilated into the larger society and that as long as racial or ethnic minorities maintained a separate (and adversarial) existence they were likely to be victims of discrimination. Thomas Sowell, Ethnic America (New York: Basic Books Inc., 1981).

20. Michael Walzer postulates life and liberty to be absolute values protected even in war at p. xvi and pp. 135 et seq. The protections of the Bill of Rights are discussed in Chapter 3. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp. 21 et seq. (hereinafter Walzer). Generally, for law of war standards, see FM 27-10, The Law of Land Warfare (July 1956, including Change 1 dated July 1976) (hereinafter FM 27-10); note the duplicity in para. 25 (p. 16) regarding civilians of an enemy nation: US law considers them to be the enemy while international law requires that they should not be the object of attack. On the tendency to ignore any distinction between combatants and civilians during total war (discussed in Chapter 1), see Quincy Wright, A Study of War, supra n.

21. For a discussion of Walzer's just war principles applied to Desert Storm, see Yuval Joseph Zacks, 'Operation Desert Storm, A Just War?', Military Review (January 1992), p. 20. Zacks' conclusion that Desert Storm met the criteria for just war is questioned by Ranier H. Spencer in 'A Just War Primer', Military Review (February 1993), p. 20. Ranier questions whether the targeting of infrastructure that served both Iraqi civilian and military needs met the criteria of Walzer's revised 'double effect' standard. Elliot Cohen would argue that it did. See Cohen, The Mystique of US Air Power, n. 47 to Chapter 1.

22. In 1977 two protocols to the Geneva Conventions were adopted to address the inapplicability of the law of war to contemporary conflict. Protocol I extended the definition of war (international conflict) to include 'armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination', and Protocol II provided the protections of the law of war to conflicts 'not of an international character'. See Geoffrey Demarest, 'Updating the Geneva Conventions: The 1977 Protocols', The Army Lawyer (November 1983), p. 18. See also n. 14, supra. John Jandora has described an armed populace as a threat in 'Threat Parameters for Operations Other than War', Parameters (Spring 1995), pp. 55, 59-61.

23. A military lawyer analyzing the application of the law of war to the US intervention in Panama concluded that the law of war has become.. too complex for practical application to the kinds of armed conflict that prevail today'. The author attributes the problem partly to '... biased perceptions of legitimacy of one side or the other...' See John Embry Parkinson, Jr., 'United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause', Military Law Review (Summer 1991), pp.

24. Quincy Wright saw no inconsistency in simultaneously promoting human rights and state sovereignty, but then noted 'international law... has tended toward a recognition of absolute territorial sovereignty and abandonment of international standards for the protection of human rights...' Wright saw world public opinion as the ultimate sanction for international law that protects human rights, but acknowledged the conundrum that public opinion cannot develop in the absense of human rights. Wright, A Study of War, supra n.1, pp. 909, 911. As to Desert Storm, see Zacks and Spencer at n. 21, supra. For the legal bases for recent military operations, see the OPLAW Handbook, n. 14 supra at Tab D (pp. 54 et seq.).

25. For a discussion of 'preemptive self defense' by a former legal counsel to the State Department, see Abraham D. Sofaer, 'Terrorism, the Law, and the National Defense', Special Warfare (Fall 1989), p. 12. The article is also found in the Fall 1989 issue of The Military Law Review.

26. Boutros Boutros-Ghali, 'Empowering the United Nations', Foreign Affairs (Winter 1992-93), pp. 89, 98-99. Quincy Wright predicted changes in the concept of sovereignty, perhaps even its disappearance, in his 1942 book, A Study of War, n. 1 supra, p. 921.

27. Ibid. at p. 99. A word of caution was given to Boutros-Ghali and other 'new interventionists' by Stephen John Stedman in 'The New Interventionists', Foreign Affairs (Winter 1992-93), Vol. 72, No. 1, p. 1. Stedman acknowledges the erosion of sovereignty but warns against a universal standard for humanitarian intervention in civil war, arguing that the UN is structurally incapable of performing that role.

28. Gidon Gottlieb, Nation Against State, n. 17 supra. For a related concept, see n. 13 supra.

29. Ibid. at pp. 77-82.

30. Ibid. at pp. 20-24; see Grunwald at n. 18 supra. Martin van Creveld takes violent self-determination an additional step, viewing it as a trend toward anarchy. See Creveld, A Transformation of War (New York: The Free Press, 1991), Chapter 5.

31. Ibid. at pp. 114-116 (humanitarian assistance); pp. 117-121 (use of force).

32. See O'Brian, 'Special Operations in the 1980s: American Moral, Legal, Political, and Cultural Constraints', Special Operations in US Strategy (National Strategy Information Center Inc., New York, 1984), pp. 53, 59.

33. See O'Brian, unpublished paper entitled Just War Doctrine's Complementary Role in the International Law of War (1991), p. 16. Generally, on just war see Quincy Wright, A Study of War, n. 1 supra, pp. 155-162, 330-334, 385-387.

34. Ibid. at p. 22.

35. Peter Steinfels, 'Crises Altering Pacifists' Views', article in the New York Times, reprinted in The State (Columbia, SC), 21 December 1992, 1-A, 15-A.

36. Idem.

37. Idem.

38. Peter Steinfels, n. 35 supra, at 15-A.

39. Idem.

40. In an article entitled 'Wanted: A Golden Rule of Intervention' by Stephen Engelberg of The New York Times, Engelberg notes the absence of a national policy for humanitarian intervention and categorizes those on both sides of the issue: 'Gone are the traditional hawks and doves. In their place stand the new internationalists, who argue that the West has an overriding stake in encouraging order and should do so as a coalition wherever the conflict, and on the other side, the thinkers who oppose almost any intervention unless it can be justified by the familiar definitions of national interest. Engelberg quoted James Schlesinger as a pragmatist who saw the potential for humanitarian intervention but warned moralists to stay in touch with public opinion: 'Those who would act on behalf of morality had better think through the entire moral fabric including imposing those views on an indifferent body politic in America.' Reprinted in The State (Columbia, SC), 1 May 1994, p. A6.

41. The Joint Resolution passed by Congress (Public Law 102-01) on 14 January 1991, provided as follows: Whereas the Government of Iraq without provocation invaded and occupied the territory of Kuwait on August 2, 1990; Whereas both the House of Representatives... and the Senate... have condemned Iraq's invasion of Kuwait and declared their support for international action to reverse Iraq's aggression; Whereas Iraq's conventional, chemical, biological, and nuclear weapons and ballistic missile programs and its demonstrated willingness to use weapons of mass destruction pose a grave threat to world peace; Whereas the international community has demanded that Iraq withdraw uncon- ditionally and immediately from Kuwait and that Kuwait's independence and legitimate government be restored; Whereas the United Nations Security Council repeatedly affirmed the inherent right of individual or collective self-defense in response to the armed attack by Iraq against Kuwait in accordance with Article 51 of the United Nations Charter; Whereas, in the absence of full compliance by Iraq with its resolutions, the United Nations Security Council in Resolution 678 has authorized member states of the United Nations to use all necessary means, after January 15, 1991, to uphold and implement all relevant Security Council resolutions and to restore international peace and security in the area; and Whereas Iraq has persisted in its illegal occupation of, and brutal aggression against Kuwait: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled... Sec. 2(a) The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677. Sec. 2(b) Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that- (1) the United States has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council resolutions cited in subsection (a); and (2) that those efforts have not been and would not be successful in obtaining such compliance. Sec. 2(c)(1) Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. Sec. 2(c)(2) Nothing in this resolution supersedes any requirement of the War Powers Resolution. Sec. 3 At least once every 60 days, the President shall submit to the Congress a summary on the status of efforts to obtain compliance by Iraq with the resolutions adopted by the United Nations Security Council in response to Iraq's aggression.

42. See OPLAW Handbook, n. 14 supra at V-241, 242.

43. Ibid. at p. Q-181. Quincy Wright has traced the evolution of the law of war, noting how humanitarian priorities were preempted by realpolitik and total war. Wright, A Study of War, n. 1 supra, pp. 305-310, 810-812, 909-911, and n. 33 supra. Martin van Creveld has cited the necessity for the law of war (the war convention) as primarily to benefit combatants by keeping civilians out of their way. Creveld, A Transformation of War, n. 30 supra, pp. 87-94.

44. Those provisions of the Lieber Code relating to the treatment of civilians are provided in n. 18 to chapter 1. For war crimes, see OPLAW Handbook, n. 14 supra, p. Q-183.

45. Ibid. at p. Q-182.

46. See FM 27-10 n. 20 supra, p. 179.

47. Ibid. at p. 106. But see the duplicity in FM 27-10 in the treatment of enemy civilians at n. 20 supra.

48. Ibid. at p. 9. In 1977, protocols to the Geneva Conventions were developed to broaden the meaning of war to include contemporary civil wars. Protocol I extended the definition of war to include 'armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determinism', and Protocol II provided the protections of the law of war to conflicts 'not of an international character'. Geoffrey Demerest, 'Updating the Geneva Conventions: The 1977 Protocols', The Army Lawyer (November 1983), p. 18. For the additional protections provided by Common Article III to Protocol II see, 'New Protection for Victims of International Armed Conflict', Military Law Review (Spring 1988), pp. 59-82.

49. For a discussion of the role of the International Court of Justice in enforcing international law, see Abraham D. Sofaer, Terrorism, the Law, and the National Defense, cited in n. 25 supra.

50. Article by David B. Attaway, The Washington Post, reprinted in The State (Columbia, SC), 31 March 1993, p. 1-A.

51. Article by Lance Morrow, Time, 22 February 1993, pp. 48-49.

52. Editorial, 'Tribunal underlies ironies', The State, 16 February 1995, p. A18.

53. See FM 27-10, at p. 182.

54. Human rights standards for US government personnel were established by State Department policy set forth in a November 1990 message relating to the Andean Initiative: 'Human rights, as defined by the UN and OAS Declarations and treaties and in US law include fundamental protections for the individual such as freedom from extrajudicial killing, torture, disappearance, and arbitrary arrest. Human rights as defined in these instruments also include civil rights essential to a democratic society such as the the right to free expression, the right to assembly, the right to free and fair elections, the right to a fair trial, etc., as well as the right to an independent judiciary, and a government and military subject to the rule of law. These rights are the foundation of US human rights policy, which strives to protect the integrity of the individual and promote the democratic process, thus fostering peace and stability.'

55. Operational law has been defined as 'The body of domestic, foreign, and international law that impacts specifically upon US Forces in a combat and [peacetime] engagement operations.' OPLAW Handbook, n. 14 supra, at p.A-17.

56. See n. 33 to Chapter 3, supra.

57. Comments of John Shattuck (29 August 1993) cited by General Barry R McCaffrey during his keynote address, 'The National Armed Forces as Supporters of Human Rights', at the US Army School of the Americas, Fort Benning, GA, 10 August 1994, p. 4.

58. Ibid. at p. 7.

59. Ibid. at pp. 6-7; the application of the golden rule is discussed in Chapter 1 (see n. 55 to Chapter 1 supra).

60. Ibid. at pp. 9-12; treating soldiers with respect incorporates the golden rule (see n. 55 to Chapter 1, supra).