IN THE ABSENCE of a clearly defined major threat to the United States — a central characteristic of the contemporary post-Cold War world — American foreign policy has drifted in recent years. Predictably, competing schools of thought have emerged debating what America’s priorities should be, reflecting widely varying underlying philosophies about our basic national interests and values. It is no exaggeration to assert that, in today’s relative tranquility (relative, at least, compared with the Cold War), many previously undistinguished and truly marginal alternative foreign policies have emerged into the center of our national consideration. Issues and problems that had no chance of commanding the attention of high-level decision makers before the collapse of communism now receive active scrutiny and debate. This is certainly true in the United States, but it is perhaps even more common in other nations that never bore the heaviest burden of defending the West, and hence are quicker to lay aside its disciplines in the pursuit of other priorities.
To identify this phenomenon, of course, is neither to imply that it is desirable nor to accept its tacit rationale — that there are no more major threats to the United States (such as the proliferation of weapons of mass destruction, or the emergence of more classic potential adversary regimes such as the People’s Republic of China). Nonetheless, it would be foolhardy for practitioners and scholars to ignore the increasing importance of issues previously considered to be minor, for several reasons. First, "principles" of international relations and patterns of conduct can emerge from the resolution of seemingly minor issues that have considerable implications for resolving "larger" issues at a later time. Second, the United States is far from immune to the effects of the habits of thinking of our closest allies, and we ignore any erosion of their loyalty to our priorities at our peril. Third, it may well be that what initially seems to be a "minor" issue can in fact develop into a major threat for the United States, so that no prudent analyst should reject such concerns entirely out of hand.
Dealing with undesirable regimes
ONE SUCH "MINOR" issue that the United States confronts with increasing frequency today is the problem of undesirable, undemocratic regimes tenaciously and inconveniently clinging to power, and what to do about them. During the Cold War, when such regimes proliferated on both sides, America displayed a certain tolerance for authoritarian governments because it suited our larger anti-communist interests to do so. This tolerance was part of a larger pattern within our overall containment policy, which also included the rearming of Germany within the North Atlantic Alliance, and abandoning many reform priorities in Japan before they were completed in order to bring it back more quickly to productive status in America’s Pacific orbit. While many found (and still find) such associations unseemly, successive American governments took the more realistic view that victory in the anti-communist free-for-all simply had a higher priority.
Even during the Cold War, of course, there were instances where unsavory but "pro-Western" regimes were corrupt, authoritarian, or otherwise undesirable, and where direct, East-West implications were either absent, or where the stakes were not consequential. In the most egregious such cases in years past, if American interests were directly affected, U.S. policy concentrated on eliminating or containing such regimes politically or covertly. For less pressing cases, or regimes that, while odious, were friendly to us, we generally left their futures to the citizens and political-legal processes of the nations themselves. In both contexts, we were typically indifferent as to whether the leadership of such undesirable regimes ended its days in villas on the Riviera, or before motley firing squads of their fellow citizens (or worse).
Of course, today, there are still undesirable governments that threaten American interests, such as Saddam Hussein in Iraq, or rogue regimes in Cuba, Libya, and North Korea. These are, quite simply, enemy states, although what the United States is actually able to do in these extreme cases is often quite limited. Nine years after the Gulf War, there is little doubt that toppling Saddam should have been an objective in 1991 while substantial U.S. armed forces were still on the scene, or thereafter by more actively supporting potential coup plotters or insurgent popular forces. North Korea’s irrational regime, while perhaps now undergoing a change for the better in outlook, has long threatened its neighbors Japan and South Korea and, through its missile program, has increasingly posed a threat to the United States — justifying at least contemplation of preemptive action against it. Nonetheless, for reasons good and bad, eliminating such regimes may not be "doable" at an acceptable cost. Domestic American political opposition to more forward policies, or opposition from weak or fearful neighboring states may require us simply to live with the status quo, at least in the short term.
A far larger number of states do not directly threaten the United States, but are objectionable, in whole or in part, for any of several reasons, often including growing popular opposition to the regimes in their own countries. Recent examples include Gen. Raul Cedras in Haiti, President Alberto Fujimori in Peru, the Burmese military junta, the mullahs in Iran, Serbia’s Slobodan Milosevic, and the extreme Islamicist government of Sudan. How to handle senior Indonesian military figures accused of war crimes in East Timor, such as former armed forces commander Gen. Wiranto, and even the proper treatment for Gen. Augusto Pinochet and his Chilean military colleagues, is also pertinent. Many of the same questions arise in the case of rebel groups within countries, such as the Revolutionary United Front in Sierra Leone, or the confused factional strife in Rwanda and Burundi. In earlier days, the outcomes for these regimes or factions would have been handled case by case, as their respective situations might have been assessed against larger American interests.
The lawless and international law
TODAY, HOWEVER, in the United States and Western Europe especially, "human rights" advocates have decided that the application of "international criminal law" against friend, foe, or neutral alike must be the universal rule. Under this theory, undesirable regimes are to be dealt with in a legal — rather than a primarily political — framework. They are, in virtually every case, to be relentlessly prosecuted to the fullest extent possible for "crimes against humanity," and there is to be "no impunity": no exemptions, no plea bargains, no pardons, and no amnesties. By overcoming "impunity" and prosecuting these vile leaders, it is said, their regimes can be toppled and the broader cause of justice advanced. Who exactly is to do the prosecuting is somewhat unclear; while theoretically, under this view, national judicial systems should be competent to handle prosecutions of their own citizens, almost invariably the "human rights" preference is for international tribunals (whether in the newly agreed International Criminal Court or in special tribunals created by the Security Council) to ensure that no tainted favoritism or political accommodation sullies the "no impunity" commandment. Moreover, who will actually fulfill the law enforcement role of apprehending and incarcerating the supposed criminals (i.e., who will take the real risks) is also typically left ambiguous.
This line of argument superficially appeals to Americans, for we are a traditionally law-abiding people who have historically yearned for unruly foreigners to behave themselves, according to our ways. How attractive it seems to postulate a politically neutral, globally accepted, international rule of law that will automatically function to punish the undesirables and protect the virtuous without the need for America being the world’s policeman. Unfortunately, however, reality works differently. In practice, the developing "rule of law" in international affairs will have as much precedential impact on the United States as it does on truly undesirable leaders in undemocratic countries, and virtually all of it will be unhelpful from our perspective. Those in doubt need only recall the "war crimes" trials of Lyndon Johnson and others staged by Bertrand Russell and his fellow leftists during the Vietnam War. In fact, there is a hidden agenda shared by many international human rights activists that goes well beyond the prosecution of the undeniably undesirable: Ultimately, they aim at nothing less than making all national leaders — democratically elected or otherwise — "legally" accountable to their standards of international conduct.
Of course, law professors and other academics have created many of these "laws" and "standards" through their elucidation of "customary international law." Although nominally based on "state practice" — the actual behavior of nation-states over the years — customary international law today is said to evolve spontaneously, at least for those with the higher morality to see it clearly. Often, these standards are never subjected to actual democratic processes through adoption by national parliaments as positive domestic law. Even treaties, especially those dealing with "human rights," are frequently accepted as aspirations without the kind of scrutiny and debate, at least in the United States, that attaches to any serious revisions of domestic criminal law. Certainly this is the case with the lengthy declarations produced by the unending series of international conferences of the 1990s and earlier, and the mind-numbing production of resolutions by the U.N. General Assembly and other international organizations’ governing bodies. Accordingly, these "international standards" typically turn out to be a collection of smoke and mirrors that can shift with miraculous speed depending on the underlying political agenda being pursued at the moment by the righteous. In fact, the fundamentally political nature of these standards both deprives them of the legitimacy their advocates crave and serves notice on the United States of the real underlying agenda.
In Cold War times and before, the broad American consensus was that, odious as undesirable (but nonthreatening) regimes might be, they usually did not rise to a level of concern warranting the risks and potential costs of outright U.S. military intervention to decapitate the regime. In an ironic sense, the prosecutorial option sounds more appealing for these petty tyrants because they are not as formidable as those with real military capabilities, and hence are less threatening and less dangerous. But simply indulging in high-minded generalities does not address the ultimately more important operational questions of apprehending those to be prosecuted, the pacification of their supporters (which will often require military means), and the administration of their prior fiefdoms until "real" democracy is established. Indeed, these practical concerns themselves stem directly from some of the most important philosophical and constitutional questions that, in the longer term, directly affect the United States.
The birth of the Laxalt Doctrine
A BETTER APPROACH, both for the United States and for the rest of the world, is to revive the Laxalt Doctrine, named in honor of one of its most successful practitioners, former Nevada Sen. Paul Laxalt, general chairman of Ronald Reagan’s presidential campaigns, and Reagan’s closest political ally. Laxalt, in close consultation with Reagan, engineered the abdication of Philippines President Ferdinand Marcos in 1986, averting a possibly bloody civil war, and facilitating the return of the Philippines to democracy. While the Laxalt Doctrine is no more a panacea than "human rights" groups’ calls for prosecution über alles, it is superior for the United States both practically and morally, and it offers the more immediate prospect of relief for the citizens of the disagreeable regimes suffering under possibly intolerable conditions.
Laxalt’s compelling description of how his doctrine came into being in the Philippines still bears reading today. As he recounted in this publication (see "My Conversations with Ferdinand Marcos: A Lesson in Personal Diplomacy," Policy Review, Summer 1986), he went to Manila in October, 1985, at Reagan’s request to deliver a blunt message to President Marcos: You are out of touch with your countrymen, your domestic situation is deteriorating (both economically and militarily against an increasingly successful communist guerrilla movement), and things need to change, quickly. Marcos resisted the message, insisting that his government remained popular and legitimate, and that it was dealing effectively with its varied problems. In Laxalt’s view, Marcos’s rosy judgments corroborated the Reagan administration’s concern that he had become dangerously isolated. In this context, despite the continuing importance of the Cold War, the Philippines seemed relatively isolated from the larger world stage. Accordingly, despite its timing, the Marcos crisis remains an instructive paradigm for the post-Cold War period.
After Laxalt’s return to Washington, Marcos reluctantly accepted cia Director Bill Casey’s earlier suggestion to call a snap election to test his legitimacy. While the ensuing political campaign in early 1986 was generally free and fair, U.S. congressional observers and others confirmed that the conduct of the election itself was seriously flawed and dishonest. Basically no one outside of the Philippines accepted that Marcos had won, and his insistence that he had prevailed had split the Philippine military and was moving the country ever more rapidly toward civil war.
What to do? Despite high-level defections from the military to Corazon Aquino, the real election winner, Marcos insisted that he retained the loyalty of 85 percent of the armed forces, and that he was prepared to fight. Laxalt consulted with Reagan, who rejected a Marcos-Aquino power sharing arrangement as "impractical and undignified," but who authorized Laxalt to tell Marcos "he would be welcome in the United States if he saw fit to come here." Laxalt called Marcos to extend the offer, and Marcos asked what Laxalt correctly calls "the gut question": What should he do? After a brief moment of reflection, the senator spoke the key words of the Laxalt Doctrine: "Cut and cut cleanly. The time has come." Shortly thereafter, Marcos was flown to Hawaii.
Application of the Laxalt Doctrine is thus a very pragmatic American response to complex and seemingly intractable international dilemmas. Rather than risking civil war and enormous bloodshed in the Philippines, as well as even more sustained threats to America’s Clark air field and Subic Bay naval base, Laxalt successfully urged a negotiated exit for President and Mrs. Marcos. "Justice" for the corruption and human rights abuses of the Marcos era was not explicitly addressed in the few moments of decision making, and no immunity was promised, although it seemed implicit in Reagan’s offer to allow Marcos to enter the United States. (Ironically, civil immunity was not forthcoming here, prompting Marcos to try to return to the Philippines, a move repeatedly opposed by Mrs. Aquino, who wanted him kept out of the country.)
The Laxalt Doctrine today
MANY REFUSE TO ACCEPT the result of the Laxalt Doctrine in the Philippines case, arguing that Marcos ultimately escaped his just deserts, and many more argue that the broader idea of allowing a repressive ruler to exit from power should never be accepted. Pinochet must be tried, Wiranto must be tried, Milosevic must be tried, all of them must be tried. Nowhere in this "human rights" mantra is there room for a realistic cost-benefit analysis of the larger issues — including the ultimate maximization of human rights values — either from America’s perspective or that of a repressive regime’s citizens. Laxalt himself expressed concern about excessive interference with Philippine sovereignty, quaint words to today’s human rights warriors. But those words still raise a fundamental and proper concern for the United States, especially when our own sovereignty is invariably a very frequent target of those possessed of a higher morality.
Obviously, in virtually every case, the United States faces complex trade-offs among competing national interests and values, and among practical difficulties in implementing whatever policy may finally be agreed. One considerable practical difficulty, of course, is the mentality of the undesirable regime. There are some — and Milosevic is a classic example — for whom virtually the only conceivable exit from power is feet-first. Since the possibility of external powers removing these leaders is remote (for either lack of interest or ability), adhering to the model of inevitable prosecution results in only two alternatives: awaiting the inexorable results of the actuarial tables, or encouraging (or at least accepting) open insurrection and its accompanying bloodshed (not to mention the possibility of the defeat and execution of the insurrectionists and their supporters).
Thus, where clear, tangible American interests do not rise to a level justifying our use of military force, the wisdom of preserving the option of a graceful exit for distasteful leaders is apparent. Moreover, it is not just American interests at stake, but the futures of the citizens of the countries involved, many of whom earnestly believe that removing the oppressive regimes, however imperfectly, is better than having them hold on to power, perhaps even increasing their repression to do so. The policy of prosecution über alles may suit the Cromwellian standards of the "human rights" groups, but it does little for the citizens living under the regimes in question. They may prefer a less than perfect deal that, over time, enhances freedom and democracy, rather than insisting on abstract (and often unattainable) justice for the undesirable regime, or effectively requiring civil war to oust it. The alternative, the Laxalt Doctrine, while perhaps not as aesthetically pleasing to the refined tastes of the morally superior, at least has the practical advantage of being more likely to succeed. Consider the following examples:
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In Haiti, Gen. Cedras’s last-minute decision, under threat of imminent invasion to be sure, to exit the country undoubtedly saved many lives by eliminating the potential for a smoldering urban guerrilla war or protracted score-settling. Cedras faces no real threat of return and trial, and Haiti is certainly none the worse off thereby. To the contrary, the objective observer has to ask whether the "vindication" of democracy through the return to office of President Aristide has, in the years since, really produced any progress at all in Haiti. Perhaps the answer is so depressing that few ask the question.
Interestingly, in an earlier iteration of this dilemma in Haiti, President Reagan himself points out in his autobiography that he made the decision to offer "to spirit Jean-Claude (Baby Doc) Duvalier, with his family and a group of friends, out of Haiti and fly them on an Air Force jet to Paris" almost simultaneously with his decision to "relocate" Marcos from the Philippines "to avoid, as we had in Haiti, a bloody civil war." It is no surprise that President Reagan so closely shared the views of Paul Laxalt, not just in the Philippines but more broadly as well.
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In Indonesia, Gen. Wiranto’s fate is far from clear, but it appears almost certain that he and the military will accede to continued civilian control, which is likely to improve the prospects for strengthening democratic institutions in Indonesia. Prosecuting Wiranto and other key military leaders, by contrast, might well provoke a military coup, and, consequently, the indefinite postponement of further Indonesian evolution toward a stable democracy. Nonetheless, Indonesia is also under intense pressure from "human rights" advocates to cede the prosecution of Wiranto and other military figures involved in East Timor to an international tribunal, an increasingly common approach that makes it even less likely that undesirable regimes will step aside voluntarily.
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Indeed, the internationalization of the prosecutorial approach has already had adverse consequences in the case of Chile. There, Gen. Pinochet stepped back from power after being rejected in a free and fair referendum. Did the immunity from prosecution he and others received as part of the deal amount to fairness and justice as some would define them? Probably not, but so concluding does not alter the calculus through which many Chileans rationally concluded that they were still better off with a return to democracy and an immune Pinochet than with Pinochet remaining in power and democracy in Chile only a distant mirage on the horizon. The efforts by a Spanish magistrate, apparently acting in collusion with international "human rights" groups out to advance their own political agendas, to extradite Pinochet from the United Kingdom — a form of judicial kidnapping — have only served notice on unpopular regimes that they need to negotiate the terms of their exits from office more exactingly. Moreover, the fundamentally political agenda of the "human rights" groups is clearly demonstrated by the differential treatment accorded Pinochet and Fidel Castro, who travels abroad with precisely the kind of "impunity" denied to Pinochet.
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The problem of eliminating undesirable leaders can also arise in the context of rebellious factions or separatist movements controlling parts of nation-states, as with regimes actually in power. In Sierra Leone, for example, an extended civil war was brought to a temporary halt last year through the internationally negotiated Lome Accords. Under the terms of this agreement, a "national unity" coalition government was formed, including the rebel leader Foday Sankoh, whose forces undoubtedly committed numerous atrocities during the course of the lengthy civil war. (Interestingly, despite the brutal recent record of his forces, even the National Democratic Institute characterized Sankoh’s rebellion as being "against the years of an authoritarian, one-party state that had sunk the country into poverty and corruption.") Whether Sankoh ever really intended to comply with the Lome Accords is doubtful, but when their ongoing implementation, particularly the disarming and demobilization of rebel forces, actually raised the prospect of eroding his power base, Sankoh’s troops returned to military conflict. The attendant humiliation of United Nations peacekeeping efforts prompted the intervention of British forces to restore stability in their former colony and prevent a complete debacle. Sankoh’s subsequent (and highly fortuitous) capture by Sierra Leone government forces then immediately raised the question of whether he should be tried for war crimes and crimes against humanity, or whether so doing would simply incite his followers and their international supporters to continued guerrilla warfare. With British forces set to withdraw, and with the military situation in Sierra Leone still highly volatile, the Laxalt Doctrine (or its British corollary) might well be applicable there.
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Consider what may be the hardest contemporary case, Serbia’s Milosevic. Press reports, subsequently denied, indicated that even the Clinton administration was contemplating a Marcos-like exit for the Serbian leader. If application of the Laxalt Doctrine permitted Milosevic to retire with immunity to an estate on the Riviera, thus giving Serbia at least a possibility to create a democratic government, the international human rights cognoscenti would undoubtedly rise in righteous wrath. But what would the citizens of Serbia do? We know already that opposition to Milosevic is intense, although unfocused, disorganized, and ill-equipped to take on the military directly. Repeated efforts to generate popular opposition to Milosevic have fizzled time and time again. Moreover, there is no necessary guarantee that an interim regime after Milosevic departs Belgrade would inevitably welcome a transition to a democratic system (however imperfect at the outset), or behave any better internationally than Milosevic and his cronies.
While we can by no means guarantee the most desirable outcome, negotiating terms for Milosevic (and undoubtedly several other Serbian leaders) to "get out of Dodge" would provide leverage for the outside world in post-Milosevic Serbia. We can be sure that while Milosevic remains in power — and recent constitutional changes to permit his reelection indicate he is currently in no mood to step down — stability and reconstruction throughout the Balkans are still remote. What would Serbia’s neighbors, eager for peace and stability in the region and the attendant economic reconstruction and growth that are so urgently needed, say if Milosevic had a concrete option for a Marcos-like departure from Serbia? If the increased criminalization of Bosnia and Kosovo is any indication, conditions there may actually be getting worse. That deterioration is no more perfect justice than would be Milosevic sunning himself on a beach, and it obviously leaves the average person in the region worse off. How long are they supposed to wait for the punctilios of the "human rights" groups to be satisfied before the condition of the actual residents in former Yugoslavia is allowed to improve?
Resist or regret
THERE IS NO DOUBT that many "human rights" activists are motivated as much by their desire to construct a comprehensive international law straitjacket as they are by their concern for the victims of war crimes and crimes against humanity. For them, the results in particular cases, such as Pinochet or Wiranto, are of less concern than the broad precedents they can establish to override national legal systems. Their agendas sound dry and legalistic (putting many otherwise astute observers immediately to sleep), or appear frivolous and irrelevant to traditional foreign policy analysts (such as "social summits" and the recent "Beijing-plus-five" conference in New York), far removed from international realpolitik.
Unfortunately, precisely the opposite is true. Many "globalists" (especially the human rights groups) have a deeply political agenda, and one of its central elements is the gauzy notion that force and power in international affairs can be easily replaced by "the rule of law" enforced through multilateral organizations. Although wildly naïve (and therefore dangerous), one unmistakable objective is the limitation of American power through a network of legal prohibitions applied initially to the likes of Pinochet, but applied later to American presidents and secretaries of state and defense.
Americans can resist this tendency now or face the deleterious consequences later. Accordingly, the Laxalt Doctrine provides both a more realistic way of dealing with immediate problems of undesirable regimes and also protection against the implicit agenda of the human rights warriors and their allies. Different American administrations and their decision makers will make different tradeoffs under the Laxalt Doctrine, which is not only to be expected, but also to be welcomed. Indeed, it is the prospect of that very flexibility and the necessity to craft case by case judgments that make it such a potentially important and useful tool of a realistic American foreign policy. It is by no means a free pass for repressive regimes. There are almost certainly cases in which Americans will not find a villa on the Riviera acceptable for undesirable or authoritarian rulers, and where hanging justice is the only appropriate end. Nonetheless, the Laxalt Doctrine is a quintessentially American response to an imperfect world filled with irritatingly imperfect humans, and its revival in a new administration would be a most welcome development.
