Benign Hegemony? Kosovo and Article 2(4) of the U. N. Charter

INTRODUCTION 1. UN Charter Art II (1945),59 Star 1031, Treaty Set No 993 (1945). The 1999 U.S.-led, NATO-assisted air strike against Yugoslavia has been extolled by some as leading to the creation of a new rule of international law permitting nations to undertake forceful humanitarian intervention where the Security Council cannot act. This view posits the United States as a benevolent hegemon militarily intervening in certain circumstances in defense of such universal values as the protection of human rights. This article challenges that view. NATO's Kosovo intervention does not represent a benign hegemon introducing a new rule of international law. Rather, the United States, freed from Cold War competition with a rival superpower, is both less restrained by the Charter's norms and more compelled to rely on different rationales to justify military action. Particularly in light of the Afghanistan, Sudan, and Iraq military interventions, the Kosovo operation does not portend a new rule of international law. Rather, it poses a serious threat to the rule of law. Post-World War II international relations can be roughly divided into three periods. The first, stretching throughout the Cold War, was one in which the competing superpowers maintained a formal deference towards the Charter's prohibitions on non-defensive uses of force, but attempted to stretch the concept of self-defense to justify what in reality were violations of the Charter. The second was a brief unipolar yet multilateral moment between the Cold War's end and the late 1990s. During this time a United States-led U.N. authorized various military actions by the United States and other nations. The third and current era is characterized by the recent United States use of force outside of the U.N. framework against Iraq, Afghanistan, Sudan, and Yugoslavia. This era presents the grave danger that U.S. hegemony will further undermine the post-World War II quest to place the use of force under the control of a truly international organization.1 I. THE U.N. CHARTER IN A BIPOLAR WORLD The drafters of the U.N. Charter attempted to create a bright-line rule limiting the use of force. The use of force by individual states was prohibited, except in selfdefense, to respond to an armed attack by one country against another. The Charter required that the Security Council authorize all other uses of force. The clear rules of the Charter were premised on a set of assumptions that proved faulty. The Charter's framers sought to prevent a recurrence of the traumatic World War II experience from which they had just emerged. They assumed that interstate violence would dominate the second half of the twentieth century as it had the first. In fact, however, intrastate conflict constituted the predominant form of warfare during the next five decades. Moreover, the framers assumed that the Security Council would intervene to stop warfare, at least where one of the five permanent members was not directly involved. This assumption also proved inaccurate, as the Security Council remained deadlocked for almost half a century during the Cold War. Nonetheless, the bipolar Cold War struggle between the two superpowers strained, but did not break Article 2(4)'s restrictions on the use of force. While both the Soviet Union and the United States violated the Charter's prohibitions where their perceived national interest required-the Soviet invasions of Hungary, Czechoslovakia, and Afghanistan, and the U.S. military incursions against Cuba, the Dominican Republic, Nicaragua, Grenada, Libya, and Panama-both superpowers maintained a formal fealty to the principle that force not be used except in selfdefense. Neither the Soviet Union nor the United States and its allies chose to openly challenge the Charter's norms for several reasons. First, both had an interest in the stability of the formal rules stemming from World War II; neither desired the destabilizing effects that openly challenging the recently adopted Charter's scheme would bring. …