Philip Bobbitt
The Shield of Achilles
It is difficult to forget the scene of the small Ethiopian emperor appealing in vain to the great powers for aid. But it seems to be equally difficult to remember the Italian aggression against defenseless Libyan tribes that occurred several years earlier. Then Italian planes strafed and waged, systematically if incompetently, a modern war of ethnic annihilation; this was when the first concentration camps were set up by a European power in the twentieth century. Libya was, however, unlike Ethiopia, governed by Italy and thus these acts of aggression were veiled by the cloak of sovereignty. This failure to act by the society of nation-states was not simply a lapse of will, and so it is seldom associated with the League's other public failures. Rather such a failure was built into the idea of a world community composed of sovereign nation-states. The League was irrelevant to allegedly domestic disputes. Perhaps we should be grateful that Hitler invaded Poland, for otherwise we might have been treated to the spectacle of the society of states standing by while the Holocaust efficiently proceeded as an 'internal matter.'
Indeed the U.N. Charter under Article 2 (7) specifically precludes the organization from intervening 'in matters which are essentially within the domestic jurisdiction of any state.' Similarly, the Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty provides that '[n]o State has the right to intervene, directly or indirectly for any reason whatever in the internal or external affairs of any other State.'
The U.N., a second generation of the League, has given us a second generation of such failures, that is, a new wave of crimes shielded by sovereignty. Perhaps the most notorious is that of the Cambodian class crimes. The Khmer Rouge were the sovereign authority for purposes of international law; indeed the United States (and many states) voted to preserve their U.N. seat even when the Khmer Rouge abandoned Phnom Penh. Atrocities conducted within a state's borders are impervious to an international law built out of absolute sovereignty. Human catastrophes like the war in Mali simply never rise to the consciousness of the U.N., a majority of whose members could be counted on to keep it—as they long kept the Somali civil war—off the international agenda. The same model of international law that has shaped the League of Nations and the United Nations has also created a certain sort of legal status for the State that actually enfeebles those international institutions with respect to a critical class of conflicts.
Nor can we say that these institutions have even succeeded in preventing or at least managing war, the goal for which their bargain with the State was struck regarding sovereignty. The story of the League's failure to prevent war, including World War II, is too familiar to recount. The U.N. was designed with precisely this failure in mind, and was given constitutional authority to arm itself and to wage war against aggressors who threatened the peace. It is instructive, however, to look closely at how the U.N. has actually managed to succeed when it has acted to wage war. It may surprise some to learn that its successes have come only because the ideal of a world covenant enforced by a world military force has quickly, if quietly, abandoned.
Articles 42 and 43 of the U.N. Charter authorize the Security Council to use armed forces to maintain international peace and security. Article 43 provides for military agreements by which it was thought a U.N. force would be constituted from personnel contributed by the member states.
This has never materialized. The temporary absence of the Soviet delegate in June 1950 permitted the Security Council to recommend that members repel the North Korean attack on South Korea and to authorize the U.S.-designated commander to use the U.N. flag. All U.S. forces, however, were under U.S. command and, save in name only, there was no significant U.N. force on the peninsula. Absent the kinds of agreements envisaged under Article 43, the Security Council has no authority to command member states to commit their armed forces to a U.N. military enforcement action.
The consequence of this arrangement is that armed forces remain entirely the creatures of states. The recent coalition force arrayed against Iraq provides an example. With more justice, it might be said that this was a NATO force, with contributions from the Gulf region, rather than a U.N. force. There is nothing wrong with this; indeed I have suggested there is much right with such ad hoc coalitional forces. But we should not delude ourselves into thinking that they function as a U.N. enforcement arm.
Whatever intentions the drafters in San Francisco may have had for a U.N. defense force, this force has never come into being. And it is notable that in the Fourth Yugoslav War, over Kosovo, the U.N. was bypassed entirely.
