THE SHIELD OF ACHILLES

by Bobbitt, Philip

  43. David Owen, Balkan Odyssey (Harcourt, Brace, 1995), 355. Roger Cohen savagely commented on this passage: “In other words: to deny a people the right to defend themselves is morally defensible if it enables you to have the satisfaction of feeding them free macaroni.” Roger Cohen, “Balkan Odyssey (Book Reviews),” The New Republic, March 11, 1996, 37.

  44. Ali and Lifschultz, 28.

  45. “Perisic Calls Journalist's War Crimes Questions ‘Illogical,’” World News Connection, May 9, 2000. But see also the case of Cedomir Mihailovic, a relatively high-ranking intelligence officer, who defected to the Netherlands and presented documents and evidence to the War Crimes Tribunal that he claimed would show that the original orders for ethnic cleansing and the setting up of the camps came directly from the Milosevic regime in Belgrade. They were purported to have been written over a number of months in a variety of different offices, but forensic analysis showed that they were all produced on a single typewriter in a much shorter period of time. Mihailovic was merely trying to ingratiate himself with Western governments. Christopher Hitchens, “Minority Report,” The Nation, June 19, 1995, 875. Dan Fesperman, “Genocide Evidence Proves Elusive: Atrocities: UN Investigators Have Failed So Far to Build a Case against Slobodan Milosevic for War Crimes in Bosnia,” Baltimore Sun, June 10, 1999, A2.

  46. “Hearing of the House National Security Committee Regarding the Proposal to Send U.S. Ground Troops to Bosnia,” Federal News Service, November 2, 1995; see also Charles Boyd, “Making Peace with the Guilty: The Truth about Bosnia,” Foreign Affairs 74 (September 1995): 22

  47. Gow, 301.

  48. Cf. Marlise Simons, “3 Serbs Convicted in Wartime Rapes,” New York Times, February 23, 2001, A1.

  49. “I think the world should recognize that the Serbian people do have legitimate interests, especially the right to self-determination for the three million Serbs living outside the borders of Serbia and Montenegro.” Heather Green, “Q&A: Diplomacy and Force in Facing the Balkan Conflict,” International Herald Tribune, March 22, 1993, 2.

  50. Owen, 342 – 343.

  51. “Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union,’” December 16, 1991, reprinted in International Legal Materials 31 (1992): 1487.

  52. Gow, 8.

  53. Stephen Hedges, Peter Cary, Bruce Auster, and Tim Zimmerman, “The Road to Ruin: Bosnia Policy and the Many Causes of Failure,” U.S. News and World Report, December 12, 1994, 59.

  54. Ibid.

  55. Quoted in Leslie H. Gelb, “Euro-Bosnian Games,” New York Times, January 31, 1993, E7.

  56. See also Secretary Christopher's frequent statements that “these people have hated each other for hundreds of years.” Also see General Charles Boyd's testimony, cited at n. 45, that the Serbs may at present appear more culpable than Muslims or Croats, but this is only because we are witnessing a small slice of the bigger picture involving a “centuries old conflict.” Hearing of the House National Security Committee Regarding the Proposal to Send U.S. Ground Troops to Bosnia, November 2, 1995.

  57. Charles Lane, “The Death of Yugoslavia,” Washington Monthly, April 1996, 48.

  58. “Reader Feedback, What Do You Think about U.S. Intervention in Bosnia?” Boston Globe, May 7, 1993, 10.

  59. Ibid.

  60. Jeff Jacoby, “A Recipe for a Debacle,” Boston Globe, November 30, 1995, 23.

  61. Transcript, report by Tom Gjelten, “Morning Edition,” National Public Radio, July 17, 1995. In this the president was only following his predecessor President Bush who said, on August 10, 1992, “Now the war in Bosnia… is a complex, convoluted conflict that grows out [of] age-old animosities…. Those who understand the nature of this conflict understand that an enduring solution cannot be imposed by force from outside on unwilling participants.”

  62. “US efforts to promote a peaceful settlement in Yugoslavia. (Statement by Principal Deputy Assistant Secretary of State Ralph Johnson) (Transcript).” U.S. Department of State Dispatch, vol. 2, October 21, 1991, 782.

  63. Quoted by Saul Friedman, “U.S. Joins Aid Effort,” Newsday, July 2, 1992.

  64. “Clinton Mulls New Bosnia Steps,” USA Today, May 13, 1993, A1 (“calling the crisis a ‘European issue'…”)

  65. This eventually became the demand that the Vance-Owen Plan be accepted.

  66. Heinz A. J. Kern, “The Clinton Doctrine: A New Foreign Policy: The White House Bosnia Retreat Shows a New Approach to the U.S. World Role—Balancing U.S. Power and Commitment. The New Doctrine Is a Mixed Blessing,” Christian Science Monitor, June 18, 1993.

  67. This remark made on CNN, Larry King Live, July 31, 1993.

  68. At Srebrenica one desperate request by the local U.N. commander for air strikes was rebuffed on the grounds that the wrong form had been submitted.

  69. Any possible air strikes may do nothing to deter Serbian aggression. ‘Will it be enough to… stop the shelling of Sarajevo, to bring parties to the peace table?’” Boutros-Ghali said. Johanna Neuman, “Cautious Clinton Tiptoes Nearer to Bosnia Commitment,” USA Today, July 29, 1993, A7.

  70. “A ‘Terrible War' Rages On” U.N. Chronicle 31 (March 1994): 62.

  71. Frank Murray, “Clinton Turned Down U.S. Plan for Air Strikes,” Times of London, June 14, 1993, Overseas News.

  72. Craig Whitney, “Conflict in the Balkans; the Strategy; NATO Diplomats Question Details of Plan for Air Raids,” New York Times, July 23, 1995, A1.

  73. “NATO military officers pointed out that Britain had often agreed to threaten NATO air strikes against the Serbs in principle but had balked at launching them for fear of provoking retaliation against British soldiers in the United Nations peacekeeping force in Bosnia.” Ibid. See also, “The Crossing of the Mogadishu Line,” Economist, January 13, 1996, 51.

  74. Owen, 355.

  75. James B. Steinberg, “International Involvement in the Yugoslavia Conflict,” in Enforcing Restraint: Collective Intervention in Internal Conflicts, ed. Lori Fisler Damrosch (Council on Foreign Relations, 1993), 64.

  76. Steinberg, 44; Leslie H. Gelb, “False Humanitarianism,” New York Times, August 6, 1992, A23.

  77. John F. Burns, “Serbs Hedging on Vows to Ease Siege in Bosnia,” New York Times, August 7, 1993, A1.

  78. “Kozyrev, U.N. Chief Oppose Armed Intervention in Ex-Yugoslavia,” Agence France-Presse, December 26, 1992.

  79. The Dayton Agreement also gives rights to Bosnian Croats and Serbs for political affiliation with Croatia and Serbia respectively.

  80. “To understand the failure of international efforts and the conditions for success, it is necessary to analyse in detail what the initiatives taken actually were.” (Gow, 6.)

  CHAPTER SIXTEEN: THE DEATH OF THE SOCIETY OF NATION-STATES

  1. Charles Tilly, “Futures of European States,” Social Research 59 (1992): 715.

  2. G.A. Res. 2131, 20 U.N. GAOR Supp. (No. 14) 11, U.N. Doc. A/6014 (1965).

  3. As one U.N. official put it, “The lesson of all this is that the U.N. does not learn lessons.”

  4. And also the Chinese suppression of Tibet.

  5. Nevertheless, the need to keep allies on board restrained the United States at a number of points in the conflict. William Stueck, The Korean War: An International History (Princeton University Press, 1995), 130 – 142.

  6. See also W. Michael Reisman, “Coercion and Self-Determination: Construing Charter Article 2(4),” American Journal of International Law 78 (July 1984): 642.

  7. An alternative proposal was put forward by Brian Urquhart, “For a UN Volunteer Military Force,” New York Review of Books, June 10, 1993, 3.

  8. NATO having successfully made the transition from nation-state to market-state instrument.

  CHAPTER SEVENTEEN: PEACE AND THE INTERNATIONAL ORDER

  1. Guicciardini wrote in his Ricordi, “Before the year 1494, wars were protracted, battles bloodless, the methods followed in besieging towns slow and uncertain; and although artiller
y was already in use, it was managed with such want of skill that it caused little hurt. Hence it came about that the ruler of a state could hardly be dispossessed. But the French, on their invasion of Italy, infused so much liveliness into our wars, that [until compensating fortifications could be introduced] whenever open country was lost, the state was lost with it.” Cf. Francesco Guicciardini, Ricordi (Mursia, 1994).

  2. A sympathetic thesis was propounded by Robert Randle in 1987 that I gratefully stumbled upon only as this book was going to press. Randle writes that “major peace settlements, such as Westphalia and Vienna, have the characteristics of constitutions; the same can be said of many lesser settlements, even those ending bi-lateral wars. Peace settlements not only bring wars to an end; they can also revise the constitution of the state system.” Robert Randle, Issues in the History of International Relations: The Role of Issues in the Evolution of the State System (Praeger, 1987), 34. See also Christian Reus-Smit, “The Constitutional Structure of International Society and the Nature of Fundamental Institutions,” International Organization 51 (Autumn 1997): 555. In this chapter, I shall argue that the peace settlements that conclude epochal wars are the constitutions of the society of states.

  3. Randle, Issues in the History of International Relations, 183.

  4. Randle believes that the “key patterning of interstate relations results from states' interests in issues,” whereas I argue that the key pattern results from states' security needs in interaction with their domestic constitutional development—which may or may not be coextensive with the issues of the day. And Randle argues that the peace agreements are revisions of the constitutions of state systems, whereas I suggest that it is the society of states (by no means limited to its formal, juridical components) that is being reformed.

  5. Cf. the opening paragraph of Hedley Bull, “The Emergence of a Universal International Society” in The Expansion of International Society, 117.

  6. Cf. Paul Rice Doolin, The Fronde (Cambridge, Mass.: Harvard University Press, 1935).

  7. Randle, The Origins of Peace (New York: Free Press, 1973) 46 – 47; A transformation occurs when one ordering principle replaces another. A constitution embodies ordering principles so a transformation of the society of states occurs when a new constitution of that society replaces the old.

  CHAPTER EIGHTEEN: THE TREATY OF AUGSBURG

  1. New Cambridge Modern History, vol. 1, 5.

  2. Richard. Bonney, The European Dynastic States, 1494 – 1660 (Oxford University Press, 1991), 81.

  3. Ibid.

  4. New Cambridge Modern History, vol. 2, 7.

  5. Wilbur K. Jordan, The Development of Religious Toleration in England, vol. 1 (P. Smith, 1965), 37.

  6. See Ben S. Trotter, “War and Government in the French Provinces: Picardy, 1470 – 1560,” a review of David Potter's book of this title in The Historian 57 (Autumn 1994): 183. Potter “contends that the Hundred Years War and the Wars of Religion, seemingly motivated by issues more lofty than dynastic concerns, have eclipsed the role which the Habsburg-Valois Wars played in the development of absolute monarchy, particularly its military, administrative, and financial institutions.”

  7. Ronald A. Brand, “External Sovereignty and International Law,” Fordham International Law Journal 18 (May 1995): 1688.

  8. Bull and Watson, 15.

  9. See Part II of Book I of the present work.

  10. The Sea of Faith / Was once, too, at the full, and round earth's shore / Lay like the folds of a bright girdle furl'd.” Matthew Arnold, “Dover Beach,” in The Norton Anthology of English Literature (Norton, 1974), 1355.

  11. Adam Watson, “European International Society and Its Expansion,” in The Expansion of International Society (ed. H. Bull and A. Watson) (Oxford, 1984), 15.

  12. See S. Schumann, “Joachim Mynsinger von Frundeck: Humanist-Rechtgelehrter-Politiker (1514 – 1588),” Archiv fur Kulturgeschichte 1980 – 1981, 62 – 63, 159 – 193, arguing that “the stable period between the Peace of Augsburg and the outbreak of the Thirty Years War allowed the development of consolidated territorial states run for princes by bureaucrats drawn largely from a mostly bourgeois educated elite.”

  13. Judith Brown, “Courtiers and Christians: the First Japanese Emissaries to Europe,” Renaissance Quarterly 47 (Winter 1994): 872.

  14. Ibid.

  15. Benedict Kingsbury and Adam Roberts, “Introduction to Hugo Grotius and International Relations,” Hugo Grotius and International Relations, ed. Hedley Bull, Benedict Kingsbury, and Adam Roberts (Oxford University Press, 1992), 8.

  16. Political Writings, Francisco de Vitoria, ed. Anthony Pagden and Jeremy Lawrence (Cambridge University Press, 1991): “The origin of public international law dates to Father Francisco de Vitoria and his studies of sovereign rights to claim and colonize the New World.” See also “The International Community According to Francisco de Vitoria,” The Thomist 10 (January 1947): 1 – 55.

  17. See J. Verhoeven's essay in Actualité de la Pensée Juridique de Francisco de Vitoria, ed. A. Truyol y Serra, H. Mechoulan, P. Haggenmacher. A. Ortiz-Arce, P. M. Marine, and J. Verhoeven (Bruylant, 1988), reviewed by R. Beenstra, American Journal of International Law 86 (1992): 181.

  18. Alice J. Knight, Las Casas: “The Apostle of the Indies” (Neale, 1917); Francis A. McNutt, Bartholomew de las Casas: His Life, His Apostolate, and His Writings (Putnam, 1909); both cited by Nussbaum, n. 12, 310.

  19. Vitoria, De Indis Recenter Inventis, II, i – vii.

  20. In the heresy proceeding against Erasmus, Vitoria, as the representative of the Inquisition, judged the great humanist guilty though many of Vitoria's colleagues attempted to dissuade him. Nussbaum, 63.

  21. Vitoria, Relectio de Jure Belli, XIII. “Having suffered a wrong is the one and only just basis for war.”

  22. Compare James L. Brierly, “Suarez's Vision of a World Community” and “The Realization Today of Suarez's World Community,” in The Basis of Obligation in International Law and Other Papers, ed. Hersch Lauterpacht and C.H.M. Waldock (Oxford: Clarendon Press, 1958).

  23. Francisco Suarez, De Legibus ac Deo Legislatore, II.xix.9.

  24. See e.g., Cornelius F. Murphy, Jr., “The Grotian Vision of World Order,” American Journal of International Law 76 (July 1982): 496 – 497.

  25. Francisco Suarez, Selections from Three Works, vol. 2, ed. Carnegie, trans. Gwladys Williams, Ammi Brown, and John Waldron (Clarendon Press, 1944), 817.

  26. See plates on p. 346.

  27. P. Haggenmacher, “Grotius and Gentili,” in Kingsbury and Roberts, 140. This is Haggenmacher's translation of a letter from Gentili to his friend John Bennett; see Holland, “Alberico Gentili,” appendix no. 4, 29–30; see also Gesina H. J. van der Molen, Alberico Gentili (A. W. Sijthoff, 1968), 53.

  28. “[A]nd thus paradoxically the Protestant refugee had come to side with the main Catholic power against the country which was steadily becoming a bastion of Calvinism.” Haggenmacher, 141; see also Nussbaum, saying that Gentili's acceptance of this role was “a somewhat puzzling step for a Protestant refugee to take.” Nussbaum, 76.

  29. Alberico Gentili, De Jure Belli Libri Tres, vol. 2, ed. Carnegie, trans. John C. Rolfe (Clarendon Press, 1933), 1612, paragraph 609.

  30. Compare TAN 141. This conclusion is at variance with that drawn by Francis I also on the juridical basis that the State is distinguishable from the prince. Either conclusion is reasonable; what is interesting is the shared premise.

  31. See Theodor Meron, “The Authority to Make Treaties in the Late Middle Ages,” American Journal of International Law 89 (January 1995): 14.

  32. “There remains now the one question concerning an honorable cause for waging war… which is undertaken for no private reason of our own, but for the common interest and in behalf of others. Look you, if men clearly sin against the laws of nature and mankind, I believe that any one whatsoever may check such men by force of arms.” Quoted by Meron, 114.

  33. Nussbaum 84.

  34.
Nussbaum, 79.

  CHAPTER NINETEEN: THE PEACE OF WESTPHALIA

  1. See memorandum to Louis XIII of January 1629, quoted in New Cambridge Modern History, vol. 4, 328.

  2. Henry J. Chaytor, European History: Great Leaders and Landmarks from Early to Modern Times, vol. 3 (Gresham Publishing, 1915), 113.

  3. As Randle observed in his monumental study of European wars and peace agreements, “The European order collapsed in the Franco-Dutch war in 1678. It did so again in 1683 with a general European war that lasted 17 years, in 1701 in the War of Spanish Succession, in 1740 in the War of Austrian Succession, and again in the Seven Years War (1756 – 1763)… In the settlements that ended all these major wars, Westphalia was approved and incorporated by reference.” Randle, 70.