The High-level Panel’s high-minded errors
In july 2003, on the heels of the American invasion of Iraq, United Nations Secretary General Kofi Annan held an extraordinary press conference. He warned that we are “living through a crisis of the international system.” He wondered aloud “whether the institutions and methods we are accustomed to are really adequate to deal with all the stresses of the last couple of years.” “What are the rules?” he asked. Four months later he proceeded to appoint a group, the “High-level Panel on Threats, Challenges and Change” to recommend reforms. The panel consisted of former governmental officials and in pursuing its task met at various points around the world. Hopes ran high that its ideas would breathe new life into an organization that needed, in Annan’s word, “radical” change. In December 2004, it issued its report.
For a Burkean realist with any sense of institutional conservation, making the most of the United Nations is a useful project. Lots of capital, financial and otherwise, has been invested in the organization over the past 60 years. To the extent possible, humanity should profit from its investment. Even if the objective were merely to advance individual states’ national interests, the un may be a useful tool for doing so. In any event, it is hard to fault an organization that recognizes the need to reform itself, especially one that has borne the hopes of humanity so heavily as has the United Nations.
Sadly, however, the core recommendations of the panel’s report, concerning the use of armed force, rest upon wishful thinking rather than empirical evidence. The report evinces a view of a world governed by objective, universal morality rather than by competition for power and shifting national interests. It treats substantive problems as language problems, suggesting that a new vocabulary will eliminate underlying differences. Historical context is either missing or incorrect. The report, in short, exhibits all the familiar shortcomings of old-style Platonic idealism, ignoring the real-world incentives and disincentives to which states actually respond.
Use of force
The panel’s core recommendation is twofold, addressing when force may be used and when force should be used. Force may lawfully be used by states, the panel declares, only in response to an imminent threat or when that use has been approved by the Security Council. Force should be used, by states or by the Security Council, only when its use is legitimate. “[A]nyone . . . involved in these decisions” should be guided by five “criteria of legitimacy” before using force: (1) whether the threat is sufficiently serious, (2) whether the purpose is proper, (3) whether every nonmilitary option has been exhausted, (4) whether the military action is proportionate to the threat, and (5) whether there is a reasonable chance of success.
Many problems inhere in this approach, foremost among them that, unless the Security Council approves, a state would not be permitted to use force against a serious and likely threat until it becomes imminent. This would not be a reasonable limit on state power. The gravity of a threat and the probability of its occurrence are factors far more likely to determine whether a state will use defensive force than whether the threat is imminent. No responsible policymaker, knowing that some rogue state or terrorist group is planning a nuclear strike, would recommend sitting tight until the attack becomes imminent. Indeed, the panel’s own criteria seem to suggest that using defensive force under such circumstances would be legitimate. The New York Times, not known for its support of unilateralism, thus editorialized that the suggestion is unrealistic (December 7, 2004).
Similarly out of touch is the report’s condemnation of humanitarian intervention without Security Council approval. “Genocide anywhere is a threat to the security of all,” the report declares, “and should never be tolerated.” But the panel doesn’t really believe that genocide is always intolerable. If the Security Council deadlocks, the panel opines, genocide must be allowed to continue. France’s invasion of the Central African Republic to end the murderous regime of Jean-Bedel Bokassa, Vietnam’s invasion of Cambodia to oust the Khmer Rouge, Tanzania’s invasion of Uganda that put a halt to Idi Amin’s bloodbath, nato’s 1998 air campaign against Yugoslavia to stop ethnic cleansing in Kosovo — all would have been prohibited had the panel’s preferred rules prevailed. Yet here again, under the five criteria espoused by the panel, each such intervention might have been legitimate.
The panel suggests that its legitimacy criteria should be formally adopted in resolutions by both the General Assembly and Security Council. Doing so, the report insists, “should significantly improve the chances of reaching international consensus on what have been in recent years deeply divisive issues.” But there is, alas, little reason to think so.
The criteria of course originate (though the panel does not acknowledge it) in the doctrine of just war. It might actually be more accurate to say a just war doctrine: There is no single such doctrine. Various versions have been proffered over the centuries, each with different criteria. (One common account, for example, sets forth the requirement of noncombatant immunity, which the panel’s version omits.) The single unifying element in competing versions is their supposed source: natural law. Each posits as its well-spring a single, universal, overarching set of moral precepts that all human beings everywhere are obliged to obey.
The fifth-century writings of St. Augustine form the basis of just war arguments. In The City of God, Augustine presents a morality that he believes all right-thinking persons must necessarily accept. “[I]n men,” he writes, “a right will is in union with the divine law.” Good and evil are known through “an inward law, that in thy very heart is written.” The “tribunal is in thy mind, there is sitting there God.” Man’s law corresponds to God’s, “[b]ecause God has distributed to mankind these very human rights through the emperors and kings of the world.” God’s law is man’s law; “‘lawfully’ means justly and justly means rightly.” Thus, war must be “undertaken in obedience to God.” When it is, it is a “righteous war.” A “man be blameless who carries on war on the authority of God”; war, Augustine urges, “might be waged by the good, in order that, by bringing under the yoke the unbridled lusts of men, those vices might be abolished which ought, under a just government, to be either extirpated or suppressed.” The reason that people disagree about what is just is simply that there are “erring and impious men.” If only “one faith existed in all,” we would not be plagued by such disagreements. It is no surprise that Augustine’s next chapter is entitled “Persecution of Heretics”: Sometimes, “he that inflicts [persecution] is in the right.” The “necessary . . . terror inspired” by such laws is merely “a kind of medicinal inconvenience for the cold and wicked hearts of many men.”
The enlightened members of the High-level Panel would no doubt be horrified by such ideas, or at least by some of them. But the panel does seem to buy into the core assumption of just war theory that all right-thinking people, everywhere, will somehow identify in unison “sufficiently clear and serious” threats to “State . . . or human security” and can in addition determine as with one mind the “primary purpose” of a given military action. It is important, the report counsels, that decisions be made “for the right reasons, morally.” Force should only be used when “good conscience” permits. The “moral stance” against terrorism must be reinforced. So it is only fair to ask: From what source does the panel extract its universally “valuable” legitimacy criteria? Right reason? The Bible? The Koran? The Islamic scholar Bassam Tibi has written that.“[t]he Western distinction between just and unjust wars linked to specific grounds for war is unknown in Islam. Any war against unbelievers, whatever its immediate ground, is morally justified.”1 Where can we go to find more information on the panel’s source? Why does its source trump all other potentially conflicting sources?
The question is important because “erring and impious men” continue to differ on when use of force is just or, rather, legitimate. We’re not yet all singing from the same hymnal. Prior to the American attack on Iraq, opposing op-eds appeared in the New York Times contending that under just war doctrine an attack was permissible (Senator John McCain) and impermissible (former President Jimmy Carter). Who was erring and impious? Was the Iraqi threat “sufficiently clear and serious”? What was the invasion’s “primary purpose”? What, for that matter, was the primary purpose of, say, Tanzania’s 1978 invasion of Uganda? The Ugandan head of state, Idi Amin, had murdered around 300,000 people, many of whom were tortured and killed in his presence. Julius Nyerere, the president of neighboring Tanzania, felt “aversion” to Amin’s “murderous practices.” Was Nyerere’s primary purpose to stop them? Or was it to repel aggression (the month before the Tanzanian invasion of Uganda, Uganda had invaded Tanzania)? Or to restore Nyerere’s friend, Milton Obote, to power in Uganda? The truth is that in most cases no one can know the principal reason that states behave as they do. Governments, like individuals, act for many reasons, some of which can barely be discerned let alone identified as “primary.”
The “source” question is important because applying the panel’s legitimacy criteria can easily lead to contradictory results. We need to know where the criteria originate so that we can clarify questions concerning their application. The panel’s “last resort” criterion, for example, counsels that force be used only when there exists “reasonable grounds for believing that other measures will not succeed.” Yet in some circumstances where force is not a last resort, its use can still advance the ultimate objective of protecting “human security.” The panel notes, for example, that the Security Council has stopped imposing comprehensive sanctions because of their “humanitarian impact,” but the imposition of comprehensive sanctions might still succeed in averting a threat. Is the use of force therefore “illegitimate” until such sanctions are imposed? It could conceivably save more lives.
In resolving these and other dilemmas posed by its criteria, the panel offers no guidance, which makes all the more puzzling its claim that its criteria will help eliminate discord. Given that just war principles have, after all, been around in one form or another through every war fought during the past 15 centuries, what reason is there to believe that their official endorsement in a un resolution will make a difference? Why would refitting the principles in a spiffed-up vocabulary of “legitimacy” accomplish anything more than shifting the discourse and changing the buzz-words? Indeed, any likely substantive effect would seem the opposite of that intended by the panel. Rather than bringing humanity together, resurrecting natural law arguments from the Middle Ages could well provide fodder for zealots everywhere who need factitious intellectual ammunition with which to inflame their followers. Osama bin Laden would hardly disagree that war “undertaken in obedience to God” is a “righteous war,” a contention philosophically akin to the panel’s proposals for “legitimate war.” The last thing the world needs is more grounds for division, and needless ones at that.
Law and force
Legitimacy, then, is one metric by which the panel urges that the propriety of armed force be measured. The other is law. What, precisely, is the law? When can a state use armed force?
On this crucial question the report is contradictory. According to the Charter, unless the Security Council approves, a state may use force only in self-defense in response to an armed attack. Article 51 provides that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Purporting to interpret this provision, the panel asserts that “according to long established international law,” a state can take military action only if “threatened attack is imminent.” (It elsewhere credits the United Nations with upholding a “strong norm against aggressive war.”) However, the panel seems to have second thoughts about whether the imminence rule really is “long established” or, for that matter, whether any norm against aggressive war, strong or otherwise, actually exists. Earlier, the panel acknowledges that states have not in fact honored the imminence requirement and have used force without Security Council authorization:
That all States should seek Security Council authorization to use force is not a time honoured principle; if this were the case, our faith in it would be much stronger. Our analysis suggests quite the opposite — that what is at stake is a relatively new emerging norm, one that is precious but not yet deep-rooted.
How can a norm be “long-established international law” if it is a “relatively new emerging norm” that is “not yet deep-rooted”?
The panel’s confusion about the law derives from two factors. The first is the law’s own incoherence. The second is an unwillingness to locate the law in historical context. Treaties and custom both are sources of international law. In this case the two conflict: The Charter sets forth a rule that requires an actual armed attack as a predicate for the use of force, but subsequent state practice is not consistent with that rule. As the report notes in a footnote, “[f]rom 1945 to 1989, states used military force numerous times in interstate disputes. By one count, force was employed 200 times, and by another count, 680 times.” Which of the two counts is accurate, the panel does not venture to guess. But in every one of those instances, at least one state must have used force with no bona fide defensive justification because it is impossible for all parties to a conflict simultaneously to act in self-defense, and in very few of these incidents have states either waited to be attacked before defending themselves or waited until a developing threat became imminent. So it is clear that a significant number of violations have occurred however Article 51 is construed. Giving due weight to this profligate practice, how should Article 51 be interpreted?
The panel suggests that, historically, Article 51 has always been construed by everyone in a way that somehow reads out of its text the requirement of an actual armed attack as a predicate for using defensive force. A recent article in Survival (Autumn 2004) by one panel member, Gareth Evans, is revealing. Evans co-chaired a group assembled by the Canadian government that issued a report on humanitarian intervention, parts of which are lifted and included verbatim (and without attribution) in the panel’s report. Evans writes that “[i]f an army is mobilizing, its capability to cause damage is clear and its hostile intentions unequivocal, nobody has ever seriously suggested that you have to wait to be fired upon.”
In fact, the “nobodies” who have suggested it include the un’s founders and some of the leading lights in international law. Professor Thomas Franck has summarized the thinking of those who drafted that portion of the Charter:
The stringent requirement of an “armed attack” was used at the insistence of the United States. Although the State Department’s legal adviser, Green Hackworth, felt that this “greatly qualified the right of self-defense,” Governor Harold Stassen, deputy head of the delegation at San Francisco, insisted: “This was intentional and sound. We did not want exercised the right of self-defense before an armed attack had occurred.” In response to a challenge regarding U.S. “freedom under this provision in case a fleet had started from abroad against an American republic, but had not yet attacked,” Governor Stassen replied that “we could not under this provision attack the fleet but we could send a fleet of our own and be ready in case an attack came.”
Professor Louis Henkin has been among the foremost critics of a Charter interpretation that would permit preempting a future attack. The panel cites Henkin in support of the imminence requirement, but here is what Henkin wrote in 1979: “[N]either the failure of the Security Council, nor the Cold War, nor the birth of many new nations, nor the development of terrible weapons, suggests that the Charter should now be read to authorize unilateral force even if an armed attack has not occurred.” The contrary argument, he wrote, “is unfounded, its reasoning fallacious, its doctrine pernicious.”Oxford’s Ian Brownlie, writing in 1963, agreed. “[T]he view that Article 51 does not permit anticipatory action is correct,” Brownlie wrote, and “arguments to the contrary are either unconvincing or based on inconclusive pieces of evidence.” Professor and later World Court judge Philip Jessup concurred: “Under the Charter,” Jessup wrote in 1948, “alarming military preparations by a neighboring state would justify a resort to the Security Council, but would not justify resort to anticipatory force by the state which believed itself threatened.” It is therefore hard to see where the panel gets the idea that an imminence requirement is “long established.” It is not. What is clear is simply that Article 51 did at one time require states to await an actual armed attack before defending themselves, but that that provision has been violated so many times by so many states states that used force before threats became even imminent that its edge has been blunted by history. Subsequent state practice has overtaken both the imminence requirement and the armed attack requirement.
Yet the proverbial Martian would get nary a clue from this report as to why Article 51 reads the way it does or why it didn’t work. In fact, the reason for its wording is simple. Its intent lies in the finely wrought design of the un Charter — a plan that has long been shattered by the weight of reality: The Security Council was originally intended to exercise a monopoly on the use of force. The founders’ notion in 1945 was that a state, if attacked, would report to the Security Council and that the Council, drawing upon standing or standby forces provided by member states and directed by its own Military Staff Committee, would itself respond to the breach of the peace. Defensive force would be used by the victim state only during the brief interim between its report to the Security Council and the Council’s armed response. All know, of course, that it didn’t work out that way. The Council, deadlocked by the Cold War, never negotiated the special agreements contemplated in the Charter under which military units would be provided, and Churchill’s vision of a “constabulary power before which barbaric and atavistic forces will stand in awe” was never realized. The rest is not, as the report implies, mystery, but history.
But the panel’s history is not simply incomplete. It is wrong. The Founders of the un, the panel asserts, intended to create “a system in which States join together and pledge that aggression against one is aggression against all, and commit themselves in that event to react collectively.” But the Founders had no such intent. The notion that an attack on one is an attack on all is a premise that underpins mutual security treaties such as nato and the Rio Pact, but not the United Nations Charter. The use of force by member states to enforce Charter provisions or Security Council resolutions has always been regarded as optional. That is why the Charter provides, in Article 43, for the negotiation of special agreements with member states so as to require states and the Security Council to work out the conditions, if any, under which states would provide naval, air, and land forces to the Council. Absent such an agreement, no obligation obtains on the part of any member state to use armed force when another state is attacked.
Dispute over this same issue — whether the treaty obliges states to use force — first arose in 1919 in connection with Article 10 of the Covenant of the League of Nations. Concern was expressed about the constitutionality of excluding the House of Representatives from the decision to go to war by locating the commitment to use force in a treaty approved only by the Senate. That dispute was largely responsible for sinking the League Covenant in the Senate. Senator Henry Cabot Lodge and the “small group of willful men” who were his allies insisted that it be made clear that the United States undertook no obligation to use military force under the Covenant. Wilson refused to accept clarifying reservations to this effect and as a result could never get the two-thirds vote needed to join.
Memories of all this were fresh in the minds of those who met in San Francisco in 1945, and they were not about to see the un Charter go down the same drain. The founders therefore made clear that that Charter contained no obligation on the part of any state to use force. Rather, they incorporated into the Charter what was in effect an agreement to agree: Upon the initiation of the Security Council, states would have the opportunity, if they wished, to contribute military units for use by the Council in the event a member state was attacked. But member states did not, as the panel insists they did, “commit themselves in that event to react.” Indeed, in the halcyon days of 1945, the suggestion that states would themselves be using armed force individually to enforce the Charter or Security Council resolutions would have been taken as strange. It was not until the collapse of the Charter’s grand design during the Cold War and the shattering of the Security Council monopoly that the Council began to “franchise out” to individual states the right to use armed force. Even then, such use has always been regarded as a right, never an obligation. It is, indeed, doubtful that the Security Council can lawfully order a member state to use force absent a special agreement with the Council in which the state explicitly undertakes to do so.
Because the panel gets the past wrong, it gets the present wrong. “Today, more than ever before,” its report repeats, “threats are interrelated and a threat to one is a threat to all.” But that is not the way that modern states assess threats. The reason that Rwanda, Darfur, Kosovo and other human tragedies generate mainly yawns within the United Nations is not that states fail to respond to genuine threats to their own security. The reason that states often do not respond to such humanitarian catastrophes is that they do not believe that such events really are threats to their own security. Yet the report prattles on in this vein in the seeming belief that the power of positive thinking can overcome that reality. “There is a growing recognition,” the report asserts, “that the issue is not the ‘right to intervene’ of any State, but the ‘responsibility to protect’ of every State when it comes to people suffering from avoidable catastrophe.” The report here borrows, once again, from Evans’s Canadian group, which had initially come up with the idea of rhetorical relabeling as the solution to international divisions over humanitarian intervention. This panel resists confronting those underlying divisions, however, let alone the historic and geopolitical reasons that states of the South and East have opposed Western suggestions that sovereignty ought not be permitted to shield intra-state genocide. Michael Ignatieff, a member of the Canadian group, got it right. Referring to the panel’s report, Ignatieff told the Financial Times (August 30, 2003):
On intervention, the conclusion I draw is that there is no consensus in the system for any change. The great majority of states are against it, come what may. . . . I remember talking to Jeremy Greenstock [the departing British un Ambassador] and saying “we’ve got to get into a situation where the un can intervene over ethnic massacres and occasions like that.” And he said “if you think that’s a starter you don’t know what planet you’re living on.”
In response to such objections, the panel declares repeatedly that a new global consensus should somehow come into being, as though creating one is just one more item to be added to some to-do list. The panel never asks why the current consensus is what it is, how attitudinal patterns such as these develop, or why they change. It doesn’t care what interests states view as countervailing or what incentives might need to be put in place to overcome them. States are simply at fault for having “a lack of political will to react firmly against genocide”; why they lack that will is a question that the panel neither asks nor answers. What planet we’re living on is beyond the scope of its inquiry.
Correlation or causation?
The extent of the panel’s wishful thinking and distaste for empiricism is most apparent in its assessment of the contemporary international system. Panglossian assertions that there exists a “growing recognition” that humanitarian intervention by the Security Council is permissible, that there has emerged a “recent expectation that the Security Council should be the arbiter of the use of force,” that “the world has now changed and expectations about legal compliance [with the Charter] are very much higher,” that the United Nations has upheld “a strong norm . . . against aggressive war,” that “collective security institutions have made critical contributions to the maintenance of international peace and security” all are presented with neither evidence nor argument to back them up. Kosovo, Iraq, and the 200 to 680 instances in which force was used by states in violation of the Charter are not even explained away; they are ignored. Not mentioned is the General Assembly debate of 1999, in which only about a sixth of its members supported the secretary general’s endorsement of humanitarian intervention. Not mentioned is the inability of the parties to the International Criminal Court to define the term “aggression.” Not mentioned are numerous state-by-state public opinion polls, such as those conducted by the German Marshall Fund, that demonstrate deep and abiding divisions among states’ populations on fundamental issues of international peace and justice.
Instead of sound empirical research, the panel relies upon a specious methodology that equates correlation with causation. Readers are assured, for example, that “without the United Nations the post-1945 world would very probably have been a bloodier place.” How does the panel know this? Because “[t]here were fewer inter-State wars in the last half of the twentieth century than in the first half.” The possibility that the decline in inter-state conflict was the result of something else, such as growing economic integration, stronger alliances, military deterrence, more influential nongovernmental organizations, the reportage of mass media, increased international tourism, or merely a broader transnational sense of horror over the barbarism of war, seems not to have occurred to the panel.
Readers are assured, further, that in “the last 15 years, more civil wars were ended through negotiation than in the previous two centuries in large part because [of] the United Nations.” But between 1945 and 1990, the report also reveals, the number of ongoing civil wars increased by over 400 per cent. Of course more civil wars could end through negotiation: There were more civil wars. Based upon the report’s mode of reasoning, a reader might ask whether the increase in the number of civil wars was caused by the United Nations. That possibility, of course, is unworthy of the panel’s attention, but curious inferences might nonetheless be drawn if the panel’s methodology were applied consistently. If correlation equates with causation in the way the panel implies that it does, then comparatively speaking, the legalist collective security institutions of the twentieth century have been a tragic failure. During the nineteenth century, peace in Europe depended upon balance of power dynamics, not legalist institutions. As Eric Hobsbawm pointed out in The Age of Extremes (Pelham Books, 1994), no world war was fought between 1815 and 1914; during that period, “no major power fought another outside its immediate region.” The greatest (post-Napoleonic) interstate conflict of the nineteenth century, the Franco-Prussian War of 1870-71, killed perhaps 150,000 — about the same number killed during the Chaco War of 1932-35 between Paraguay and Bolivia. During the twentieth century, however, the number of war-related deaths — after the legalist model was put in place following World War i — exceeded 140 million. But these numbers do not appear in the panel’s report. Could they be the consequence of an ill-advised reliance upon legalist institutions to control armed conflict? Might there be some alternative — an alliance of democracies, strengthened regional organizations, coalitions of the willing that are less ad hoc, or some other possibility — that would maintain peace and security more effectively than has the Security Council? To the panel, this is not an issue; the panel’s task is “not to find alternatives to the Security Council as a source of authority but to make it work better than it has.” The question whether other options for managing the use of force might work better than the Security Council is simply not on the table.
Nonetheless, the panel does hazard to assess the Security Council’s effectiveness, apparently believing that effectiveness can be measured without reference to possible alternatives. The “flood of Foreign Ministers into the Security Council chambers during the debates” on Iraq “demonstrated not just the relevance but the centrality of the Charter.” One wonders whether the panel counted the number of diplomats who flooded to Geneva in 1936 to attend the League of Nations debate following Italy’s invasion of Abyssinia. Presumably the relevance and centrality of the League were also demonstrated by such homage. The panel proudly reports that the Security Council is now effective in dealing with global crises: “With the end of the cold war, the Security Council became increasingly active in addressing international threats. The average annual number of resolutions it passed increased from 15 to 60, or from one resolution a month to one a week.” What better way to address international threats than by passing resolutions? Nowhere is the Security Council’s record in conflict prevention measured against the standard set out in the first great words of the Charter: “to save succeeding generations from the scourge of war.”
If shoddy empirics were merely peripheral to its conclusions, the panel might be excused. But they are not. The panel’s impressionistic sketches of how the world works form the basis of its ideas about the solidity of the global order, and it is concern about the “risk to the global order” that causes it to oppose humanitarian intervention and preemptive defensive force. Consequently, it is crucial to know how great the costs will be if these disfavored options are to be discarded. Just how stable is the global order? How effective have the current rules really been? Who’s right — has it been 200 or 680 times that the Charter has been violated? How great would the sacrifice to stability really be if preemption and humanitarian intervention were permitted? The reader can only guess. To the panel, the unilateral option is intrinsically wrong, and that’s that. Weighing costs against benefits is not an acceptable approach. To reduce state miscreance it is necessary to reduce state power; countervailing concerns such as humanitarianism and state security are simply irrelevant.
That, then, is what Secretary General Annan has commended as the panel’s “sweeping” cure for the crisis in the international system: resurrection of the medieval just war doctrine, a new vocabulary for describing it and humanitarian intervention, and the same law — whatever it is — that we now have.
Richard Rorty has written about self-marginalization, describing how the failure of idealists to connect with the real-life concerns of a community can cause their commentary to be dismissed. With this report the United Nations moves toward that self-marginalization. It is not that ideals have no place in international discourse; far from it. States, like individuals, are driven by preferences that they often call ideals. The point here is twofold: that there is no transcendent reason why those ideals are necessarily shared by every other state or individual on the planet and that, whatever their origin, global ideals cannot be advanced unless idealists confront the practical navigational problems that stand in the way of their realization. Getting from point “a” to point “b” requires studying the world as it is, appreciating what works and what does not, knowing which incentives states respond to and which they do not. Navigational success requires determining whether others share one’s ideals, and if not, why not. Proceeding under the illusion that one’s ideals are and must be everyone else’s is a formula for disaster. “There is grave danger,” Henry Cabot Lodge said, “in an unshared idealism.” With empirical data, on the other hand, and a realistic assessment of what is feasible, it is possible to identify shared ideals and to forge compromises that last. Humanity needs to know as a practical matter what is possible to achieve and what is not. That is what was called for in this report, and that it is what it fails to deliver.
1 Bassam Tibi, "War and Peace in Islam," The Ethics of War and Peace, ed. Terry Nardin (Princeton University Press, 1996), 131.
2 Thomas M. Franck, “The UN and the Protection of Human Rights: When, If Ever, May States Deploy Military Force Without Prior Security Council Authorization?” Washington University Journal of Law and Policy 5 (2001), footnotes omitted.
3 Louis Henkin, How Nations Behave: Law and Foreign Policy, Second Edition (Columbia University Press, 1979), 141.
4 Ian Brownlie, International Law and the Use of Force by States (Oxford University Press, 1963), 278.
5 Philip C. Jessup, A Modern Law of Nations (Macmillan, 1948), 165-66.
6 For elaboration, see Michael J. Glennon, “Desuetude,” Georgetown Law Journal (March 2005).