The United Nations and the Accidental Rise of Covert Intervention

Editor’s Note: The U.N. Charter, written 75 years ago, is often described as the triumph of idealism over reality. Its call to end war, in particular, is often singled out as naïve and unrealistic. The University of Pittsburgh’s Michael Poznansky assesses the charter's impact and finds that it has led to a decrease in outright military intervention. At the same time, however, it has led the United States to switch to more covert interventions, trying to achieve the same goals but through clandestine means.

Daniel Byman

***

On June 26, 1945, the victors of World War II convened in San Francisco to sign the United Nations Charter. One of its most notable provisions was Article 2(4), which required members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This was a significant and unprecedented prohibition. As Ian Hurd describes it, “For the first time in the history of the Westphalian interstate system, war was made explicitly illegal for all states.” Prior treaties outlawing war, such as the Paris Peace Pact of 1928, included only a subset of states.

With the recent passage of the U.N. Charter’s 75th anniversary, it is a good time to take stock of its effect on world politics. The persistence of militarized interventions in particular has left many observers skeptical of the relevance of the charter’s flagship provision. According to Erik Voeten, “there is no record of the UN actively restricting states from using force, let alone the United States.” Many legal scholars agree. Thomas Franck, the former president of the American Society of International Law, wrote in 1970 that “the high-minded resolve of Article 2(4) mocks us from its grave.”

In a recent book—“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World”—I find that the effect of the U.N. Charter’s prohibition on forcible intervention, at least when it comes to the United States, is more complicated than skeptics allow. Although it has rarely prevented policymakers from intervening abroad, it has had a major influence on how those interventions looked. Concern about openly violating nonintervention often incentivized leaders to rely on covert action, even when doing so jeopardized mission success. Counterintuitively, then, the charter is partly responsible for the rise of secret interventions starting in the mid-20th century.

Intervention Before 1945

The U.N. Charter’s prohibition on forcible intervention was a remarkable break with the state of the world prior to 1945. The norm of nonintervention has been around since at least the mid-18th century. Its biggest champions were smaller states, especially those in Latin America, that suffered most from violations. When it came to the great powers, however, they typically carved out exceptions for themselves to justify interventions.

The United States’s words and actions in the early 20th century offer a good illustration. After aiding the cause of Cuban independence in the Spanish-American War, policymakers adopted the Platt Amendment, which gave the United States a “right to intervene” in order to ensure “a government adequate for the protection of life, property, and individual liberty.” The Roosevelt Corollary, announced in 1904, effectively extended this right to the entire Western Hemisphere. According to one account, the United States intervened militarily at least 35 times in the region from the end of the Spanish-American War through the mid-1930s. Many of these episodes, spanning the Taft, Wilson and Coolidge administrations, included forcibly changing regimes.

The Impact of Codification

Regime change operations did not magically disappear after 1945. But incidences of overt regime change declined dramatically. Consider that during the entirety of the Cold War, the United States openly pursued regime change in Latin America just three times—the Dominican Republic in 1965, Grenada in 1983 and Panama in 1989. Contrast that with 18 covert attempts at regime change in the same region in the same period, with notable examples including Guatemala (1954), the Dominican Republic (1960-1961), Cuba (1960-1961), Brazil (1964), Chile (1970-1973) and Nicaragua (1980s). A similar story can be told outside Latin America.

A key reason for this shift was the formalization of the nonintervention principle, first in the U.N. Charter, which emphasized forcible interference in the domestic authority structures of other states, and then in bodies like the Organization of American States (OAS), which proscribed political and economic interference as well. Following these developments, policymakers became much more reluctant to undertake regime change openly unless they could locate a legal justification for violating the prohibition against intervention, whether in the form of a self-defense claim or authorization from an international body like the U.N. Security Council or the OAS.

The United States was particularly sensitive to the prospect of being seen flagrantly violating nonintervention. There are two main reasons for this. First, there was concern that openly disregarding an international legal principle like nonintervention would undermine perceptions of America’s ability to keep its formal commitments and treaty obligations. Second, policymakers worried that it would seem hypocritical and damage America’s legitimacy and moral authority.

These considerations played out in some of the most consequential interventions of the Cold War. In the Bay of Pigs, U.S. officials tried to oust Fidel Castro covertly in large part to avoid openly violating America’s nonintervention commitments. In a memo dated February 26, 1960, Adm. Arleigh Burke, the chief of naval operations, argued that while “the U.S. has the capability to seize Cuba by direct military action,” doing so “would prove that the U.S. is not willing to abide by its treaties if U.S. interests dictate otherwise” and “violate the principle of non-intervention,” among other risks. Assistant Secretary of State Thomas Mann worried about the United States being associated with regime change in Cuba, given that it would violate “Article 2, paragraph 4, and Article 51 of the Charter of the United Nations,” as well as the OAS Charter. Arthur Schlesinger, Kennedy’s special assistant, argued that “if we admit involvement, we admit action taken in violation of the basic characters of the hemisphere and of the United Nations.”

Rethinking the Charter

Making the conceptual move from thinking about any and all violations of the U.N. Charter as evidence of its inefficacy to thinking instead about how it has affected the nature of interventions has a number of important implications. For starters, it complicates a new wave of books and articles offering skeptical takes on the extent to which the liberal international order ever really constrained the American hegemon. Policymakers’ desire to perpetuate this system frequently resulted in the concealment of violations of the nonintervention principle. As the war in Iraq showed, there are limits to that restraint. But the Obama administration’s turn to covert action in the Syrian civil war to circumvent international legal restrictions demonstrates its continued relevance.

Second, it forces us to reevaluate how international law shapes state behavior in underappreciated ways. In their influential book The Limits of International Law, Jack Goldsmith and Eric Posner hold that “international law does not pull states toward compliance contrary to their interests.” The phenomenon of covert regime change affirms that this is true but only to a point. As I argue in my recent book, “[T]here is a difference between brazen and hidden violations” of international law. Hidden violations in particular demonstrate a certain sensitivity to how others will react to blatantly illegal actions and a subsequent effort to minimize the visibility of such acts as a result.

Finally, understanding how the charter’s prohibition on intervention in the internal affairs of other states has influenced great power behavior offers interesting predictions about how the rise of new potential exceptions to nonintervention—like the Responsibility to Protect (R2P)—might have unintended consequences. In particular, it reveals how a well-intentioned norm like R2P might be used to openly pursue self-interested interventions under the guise of humanitarian action in cases where policymakers would have otherwise reached for the quiet option.

The United Nations’s legacy 75 years on is far more complicated than initially meets the eye. Those hoping it would usher in a new era of international relations in which great powers refrained from violating the sovereignty of their weaker neighbors have doubtless been disappointed. But the charter has had a lasting impact on how some of the most powerful nations pursued their interests. Though Article 2(4) has not prevented the United States from intervening abroad, it has changed the ways it intervenes—which has affected the outcomes of those interventions and how future interventions will look.