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NATO’s campaign against Yugoslavia last year was illegal but legitimate. This was a conclusion at a recent conference on the “Implications of the Kosovo Conflict on International Law,” sponsored by the Institute for International Policy Studies in Tokyo. It was illegal because it did not have United Nations Security Council authorization. It was deemed to be legitimate, nonetheless, since U.N. approval was not a realistic option, thereby leaving NATO with only two choices (diplomacy and sanctions having already failed): do nothing in the face of blatant crimes against humanity or intervene militarily. Of these two “evils,” intervention was the lesser sin.

However, even if one agrees with this contention — and many, especially in China and Russia do not — the fundamental question raised by the Kosovo intervention remains unanswered. How does the world community balance the moral (if not legal) obligation to respond effectively to crimes against humanity with legitimate concerns about national sovereignty and noninterference?

The view, espoused by some in the West, that implies that intervention is permissible whenever it suits the major powers is as unacceptable as the view that no action, no matter how terrible, justifies violating another state’s sovereignty. I argue that common ground can be found between these two extremes, based on the following guidelines:

* As a general rule, the principle of noninterference in another states internal affairs should apply.

* There are instances, however, when a national government may take actions against its citizens that are so egregious that they cannot be ignored.

* In such instances, there may be a moral imperative for the international community to act.

* Objective verification of the crimes is a prerequisite, as is a determination that internal self-policing or self-correcting mechanisms are not available. This requires an impartial verification mechanism.

* Even in such instances, the use of military force, while not precluded, should not be the first or only option. Diplomacy is the first tool, along with political and economic external pressures as appropriate.

* Should all other means fail or if the human suffering intensifies, then military intervention cannot be ruled out. Such intervention should, if possible, be applied through the United Nations or, failing that, through regional organizations or an ad hoc grouping, preferably with U.N. backing.

The challenge is to get the proponents of the more extreme positions to sit down and discuss these or similar guidelines.

I believe that Japan is suited to take a lead role in stimulating and hosting the debate on the humanitarian intervention vs. noninterference issue. As a country possessing both pacifist and humanitarian credentials, Japan can be a credible interlocutor in attempting to find middle ground positions on this thorny issue.

Japan can also take a lead role in discussing, in advance of a crisis, the types of effective nonmilitary responses that, if known in advance, might help deter a potential human-rights violator from excessive actions. As one of the world’s largest sources of foreign aid, overseas developmental assistance and foreign investment, Japan can wave a large economic stick, especially if its actions are closely coordinated with other major powers in forums like the G7 or APEC.

I argued at the time of the drafting of the Comprehensive Test Ban Treaty that Japan should take the lead in developing a series of coordinated political and economic responses that would be applied against any nation that refused to respect the wishes of the overwhelming majority of the world’s nations and conducted nuclear tests. One can only speculate if this would have helped to deter either India or Pakistan from entering the nuclear club in May of 1998. If national leaders were aware of the type of coordinated economic and political sanctions they were sure to face in response to unacceptable behavior, this could serve as a powerful deterrent to such actions.

This is not to imply that Japanese sanctions alone would have the desired impact. To the contrary, such sanctions are easily skirted. In addition, a tendency to overuse sanctions, as the United States has often been inclined to do (even against its friends), not only makes them increasingly ineffective but also makes it difficult to gain an international consensus in cases where they are appropriate. On the other hand, a unified approach can serve as a deterrent or as a tool to reverse bad behavior once it starts. Who better than Japan to initiate such an effort?

Whether or not Japan would be prepared to be involved in military operations to punish inappropriate actions once they occur is a subject that the Japanese public needs to debate. It is not clear how much Japan can do to assist the U.S. in a crisis — the 1997 revision of the U.S.-Japan Defense Guidelines was a modest step in the right direction but should be seen as representing the floor, not the ceiling, of what Japan can do — or whether it can participate in a U.N. multinational task-force.

I would argue that even within Japan’s Constitution there is considerable room for Tokyo to be a more active participant in international peacekeeping and peace enforcement activities, at least in a noncombatant or combat support role (where forces are not engaged directly in fighting but are in harm’s way).

What is needed most is not constitutional revision or reinterpretation, but the political courage to initiate the debate on Japan’s collective defense responsibilities and capabilities. Such a debate must be undertaken carefully and with an eye toward the reaction of Japan’s neighbors. But, with a few exceptions, most states in Asia appear open to the idea of greater Japanese participation in multilateral military operations.

In sum, Japan’s major contribution in the current debate over humanitarian intervention vs. noninterference should be that of a moderator and facilitator. Japan can also help to outline measures that may contribute to discouraging similar type actions from taking place in the Asia-Pacific region. However, Kosovo clearly demonstrated that political and economic posturing and even the threat of force does not always redress the grievance. NATO’s legitimate actions in Kosovo have at least raised the question as to what Japan’s response would or could be in the event of a similar humanitarian crisis in Asia. This is an answer only Japanese leaders can provide.

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