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The U.S. Ignores the U.N. Charter Because It’s Broken

Obama should explain what should replace it.

President Obama listens during a press conference at G-20 Leaders’ Summit on Sept. 6, 2013, in St. Petersburg, Russia. At the of the Russian summit, G-20 leaders remained divided over the Syrian conflict.

Photo by Sergey Guneev/Host Photo Agency via Getty Images

Whether or not President Obama executes the planned military attack on Syria, one thing will be clear: The United Nations charter rules regulating the use of military force lie in ruins. Obama, Secretary of State John Kerry, and U.N. Ambassador Samantha Power have all said that the Security Council cannot block American action. Obama supporters who believed that he would bring to the Oval Office a commitment to legality, after what they saw as the lawlessness of the Bush administration, must be confused or furious. And yet, whatever the merits of an attack on Syria, Obama is right to disregard the U.N. charter. It’s broken. Now he needs to explain how to fix it.

The U.N. charter speaks in unusually clear terms: Countries may not use military force except in self-defense or with the authorization of the Security Council. The Security Council consists of 15 countries, 10 of which rotate on and off, and five of which have permanent seats. The permanent members—the United States, China, Russia, France, and the United Kingdom—possess vetoes that can block any resolution they disapprove of. If none of these countries veto, a resolution requires at least nine of the 15 total votes for approval.

The Security Council system was designed in the wake of World War II to stop the use of military force, except when needed to maintain collective security—to stop an aggressive regime early on. It utterly failed in its mission. During the Cold War, the United States and the Soviet Union blocked each other’s efforts to pursue their ends through the Security Council, seeing any security gain for one as a loss for the other. The major exception was a resolution authorizing countries to intervene on South Korea’s side in the Korean War, which was only possible because the Soviet Union walked out in protest over another issue, a mistake it never repeated.

The end of the Cold War was supposed to unfreeze the Security Council, but that hasn’t happened. In the past two decades, the council has accomplished little, authorizing three major military operations—in Iraq, Bosnia, and Libya—but failing to address significant trouble spots like Iran, North Korea, Sudan, Chechnya, and now Syria. During this period, many countries flagrantly violated the rules against the use of force. There were countless wars: several between Israel and Arab states and between Pakistan and India, as well as wars involving China and the Soviet Union, China and Vietnam, Tanzania and Uganda, Turkey and Cyprus, China and India, the Soviet Union and Hungary, the Soviet Union and Afghanistan, Kenya and Somalia, Argentina and Britain, among others. The United States attacked Grenada, Panama, Serbia, and Iraq—and, through proxies, Cuba and Nicaragua. France, Germany, Italy, Poland, and Spain participated in some of these wars. None of the wars received Security Council backing. And although it is true that World War III was avoided, it is hard to believe that the U.N. charter, so frequently disregarded, is what deterred a global war. The U.N. charter did not play a role, for example, in American deliberations before the blockade of Cuba in 1962, an illegal act against an ally of the Soviet Union that did almost ignite a nuclear war.

It is tempting to argue that the United States could revive the U.N. system by asking for authorization from the Security Council for an intervention in Syria and then living with a denial. Perhaps other countries would follow the American example. But I doubt it. The source of the U.N.’s difficulties is not that countries recognize the value of the U.N. rules but fail to live up to them because of the absence of American leadership. The problem is that the United States, along with some of its allies, rejects the system (without explicitly saying so).

Countries see two major justifications for war: to defend themselves and to help others. Although the U.N. charter permits countries to defend themselves against attack, it blocks pre-emptive or preventive assaults that countries may believe necessary to protect themselves—like Israel’s attack on nuclear facilities in Iraq in 1981 (which provoked international condemnation) and Syria in 2007 (which did not). It also contains no exception for humanitarian intervention, so it allowed for no legal path to rescue victims of mass atrocities in Rwanda, Kosovo, Sudan, and now Syria. The Security Council can authorize such interventions, but it almost never does, for a simple reason that Power explained last week: Most countries find a “patron” among the permanent members of the Security Council that will veto any resolutions directed against them in return for diplomatic, economic, or security benefits. (She made this point about Russia as the patron of Syria, but one could just as easily make the argument about the United States and Israel, or China and North Korea or Sudan.)

One possible solution to the current impasse is to broaden the exceptions to bans on the unilateral use of military force, to permit both preventive self-defense and humanitarian interventions. Such proposals have been considered and rejected. So many countries are potential threats, or host mass atrocities during periodic bouts of turmoil, that such exceptions would swallow the ban on war. In particular, there is opposition abroad to Obama’s effort to permit unilateral intervention to punish Syria as a user of chemical weapons because of the door it opens to broader application. Why not also intervene to stop the use of other weapons of mass destruction that cause harm to civilians?

Another possible approach is reform of the Security Council. The Guardian recently argued that the permanent members of the Security Council do not fairly represent the world’s population: “The obvious solution is enlargement and the replacement of the veto system with majority voting.”

But a moment’s thought reveals the limits of this idea for a humanitarian agenda. The most populous countries that do not currently have permanent seats are India, Indonesia, Brazil, Pakistan, Nigeria, Bangladesh, Japan, the Philippines, Vietnam, Ethiopia, and Egypt. These are not countries known for pursuing a foreign policy that promotes human rights, and most of them hardly pay attention to the human rights of their own citizens. If they sat on the Security Council and majority rule governed, countries with liberal values would be routinely outvoted. And if the five members with veto power kept it or vetoes were given to additional countries, approval of resolutions would be even harder than it is today. Past efforts to expand the Security Council have failed in the face of opposition of the current veto holders and of geopolitical rivals of countries that have been proposed for a permanent seat.

The deeper problem is that the rules and principles that serve America’s interest conflict with the interests of China, Russia, and other countries. The rule of humanitarian intervention would authorize the use of military force against countries where mass atrocities occur—and whether or not you think the political persecution that routinely takes place in China and Russia count as “mass atrocities,” both countries experience periodic bouts of political turmoil where mass atrocities really do occur. Even more so for their partners, such as North Korea and Sudan. A rule of humanitarian intervention would help delegitimize these repressive regimes. And the same is true for many other countries in the world, from Pakistan to Ethiopia to Venezuela. Even if China and Russia themselves do not fear an American invasion, they do fear American interventions that will lead either to broader instability or to more American dominance.

China and Russia thus very sensibly resist the establishment of an international norm that authorizes intervention in their own countries and the lands of their allies and not in the United States and (most of) its allies. They are content with the U.N. system, which enables them to oppose efforts to establish such a norm.

Meanwhile, here at home, for 30 years five presidents of both parties have disregarded the U.N. rules on the use of force. It seems fair to say that while the United States continues to use the language of law, its position is more a self-made doctrine of American exceptionalism, which lays out U.S. claims and expectations and does not make them reciprocal for other states (as “law” necessarily does). Something like the Monroe doctrine, but applied to both hemispheres. The Bush-Obama doctrine, as one might call it (though there are some variations between the presidents), extends throughout the world. It declares that dictatorships that stay in power through violence and threaten their neighbors must fear America’s might, whatever the rest of the world might say.

This can last only as long as the United States can overwhelm other countries with its power. For a country often thought to be on the brink of decline, it’s a bold stance to take.