Preventive Force and International Security
Abraham D. Sofaer
After 9/11, U.S. President
But the Bush administration's call for preventive action went further: it endorsed using force against states that supported terrorism or failed to prevent it. This was a particularly controversial position, since using (or threatening to use) preventive force across international borders is generally considered to be a violation of international law: the
Now that the Bush administration is no longer in power, some argue that its approach to this subject should be shelved. But the objective of preventing terrorist threats before they are realized -- rather than primarily treating terrorism as a crime warranting punishment after the fact -- is now established as an essential element of U.S. national security. Indeed, in 2008,
ACCOUNTING FOR MODERN THREATS
The case for considering preventive force stems largely from the threat posed by terrorists, especially their potential use of weapons of mass destruction (WMD). But it is justified by other threats as well, including the proliferation of WMD to irresponsible or fanatical regimes; the spread of criminal activities, such as piracy and drug and human trafficking; and genocide or other massive violations of human rights.
Preventive action seeks to counter threats before they are imminent. It is thus distinguished from preemptive action, which, in
Many contemporary threats do not involve conventional forces that can be observed as they prepare to attack; rather, they involve unconventional uses of force that remain invisible until their sudden deployment. Such unconventional uses of force can seldom be preempted at their moment of imminence. Moreover, many contemporary threats do not qualify as "armed attacks" under current international law, since they come from nonstate actors, are aimed at a state's citizens or interests outside of its territory, or are considered insufficiently substantial to entitle a state to resort to the full range of actions allowed in cases of recognized self-defense. Some threats stem from criminal activities, not "armed attacks," and some involve governments targeting their own populations via massive deprivations of human rights. All these unconventional threats can be very serious and may result in great potential harm. Although international uses of force to counter such threats would be considered illegal without
Preventive actions pose serious risks. Rather than deterring a state from attacking, the prospect of being targeted by preventive action may provoke it to strike first. Moreover, since preventive actions are based on predictions of future conduct, they are subject to error. The use of force always causes human suffering, intended and unintended, but the costs are more difficult to justify if they result from an action later revealed to have been unnecessary. And preventive action can do more harm than good, opening attackers to condemnation and alienating the public in the states that are attacked. But a decision must be made one way or the other, and either option may prove in retrospect to have been wrong. Although being wrong is an unavoidable risk, it can be limited through the disciplined and effective collection and analysis of intelligence.
INTERNATIONAL OPINION AND ILLEGALITY
Despite the illegality and the risks involved, states have used unauthorized force for preventive purposes in well over 100 instances since the UN Charter was signed in 1945. This has happened in part because during the Cold War stalemate, the
Although virtually all these were technically illegal, they elicited different reactions from the international community depending on their purpose, duration, and consequences. Some unauthorized actions have been condemned, many have been accepted without comment, and some have even been widely praised or formally supported.
Uses of force whose purpose has seemed inconsistent with the UN Charter have generally been opposed. For example, whereas countries' efforts to protect their citizens have generally been tolerated, they have been opposed when colonial powers have exploited them in order to continue exercising control in former colonies (such as in the British and French seizure of the
Although interventions have often earned criticism when they have seemed to advance national interests rather than objectives based on the UN Charter, the motive has often mattered less than the result. Consider two events from the 1970s. In late 1978,
Likewise, international responses to unauthorized interventions (preventive and otherwise) have depended on the credibility of the intervening states' justifications. For example,
International attitudes toward some categories of actions have changed over time, which further complicates the task of evaluating the acceptability of these actions. For example, the
The use of force to prevent humanitarian disasters (or halt their escalation) also elicits more support today than it would have when the UN Charter was adopted. The movement to establish a "responsibility to protect" reflects a growing acceptance of the need to prevent gross violations of human rights, even those taking place within another country's borders. The 1999 U.S.-led intervention in
Preventive force, in other words, has been used widely even though it is generally regarded as illegal. This discrepancy poses a challenge for international law, whose strength and credibility depend partly on consistency and objectivity. It would be worthwhile, therefore, to develop criteria for identifying and approving those uses of force that enhance the values enshrined in the UN Charter while devising ways to constrain more effectively those that do not.
ESTABLISHING A NEW STANDARD
The existence of a
One way to remedy such inadequacies is to make sure that the existing rules serve the UN Charter's purposes. Some aspects of the law governing the use of force -- including the concepts of necessity and proportionality -- remain universally accepted. But other aspects are seldom taken seriously and deserve review and amendment. For example, states could read Article 2, paragraph 4, of the charter more literally -- as prohibiting the threat or use of force when it is employed to undermine the territorial integrity of states "or in any other manner inconsistent with the Purposes of
Instead of accepting such changes, which increasingly reflect actual state practice, the ICJ has continued to support and craft rules that effectively protect terrorists, proliferators, and irresponsible states. In 1986, for example, the ICJ rejected
One possible reaction to international law's failure to deal effectively with current threats would be to treat it as irrelevant and regard national self-interest as the only reliable guide for when to use force, preventive or otherwise. But
The 2004 report of the Secretary General's
Legality is relevant in determining an action's legitimacy, but so are other values and norms, including the propriety of dealing effectively with substantial threats to charter-based values.
Using legitimacy as a guide in determining whether to use preventive force would allow states to take into account a broader range of considerations than current international law typically dictates. Such states would weigh not only their own views regarding possible uses of preventive force but also the views of other states, nongovernmental organizations, and knowledgeable or interested groups and individuals (including UN agencies, regional organizations, religious leaders, and others). Legitimacy is not a yes-or-no proposition but a matter of degree; it does not demand the definitive conclusions required of legal opinions.
The concept of legitimacy, moreover, can be made more concrete through the establishment of a process to judge state conduct according to various important standards, such as the seriousness of a perceived threat, the necessity of using force to counter the threat, the proportionality of the force used, the extent of international support for the action in question, the action's consistency with the values of the UN Charter, the strength of the evidence supporting the intervention, and whether the action meets the chief criterion of "just war," that is, whether its expected benefits outweigh its potential costs.
In addition to subjecting potential preventive actions to these standards, states should take procedural steps to help establish the actions' legitimacy. Although preventive actions must sometimes be secret in order to be effective, their causes are often well known and should be discussed within the
THE BENEFITS OF LEGITIMACY
Some threats to international peace and security are so potentially damaging that preventing them in advance may be preferable to remedying their effects. Prevention can often be achieved by means short of force (including diplomacy, sanctions, and deterrence), and the unauthorized preventive use of force should be considered only as a last resort, when all alternatives to force have been exhausted and
Some argue against using the concept of legitimacy to evaluate the use of force on the grounds that its criteria are broad, subjective, and too permissive and so its application would undermine current international law. But relying on legitimacy is unlikely to result in less adherence to international law, since the current use-of-force rules are already routinely disregarded as impractical or unsound. Other critics argue that the notion of legitimacy is no more likely to govern the use of force effectively than are current legal standards. But the utility of legitimacy lies, partly, in the modesty of its claims. Unlike traditional legal arguments, which purport to rely on established rules to vindicate or condemn state behavior, arguments based on legitimacy claim only to guide complicated decision-making by subjecting that process to a survey of the full range of relevant international opinion.
States have much to gain and little, if anything, to lose by subjecting their decisions to use preventive (or other) force to systematic legitimacy tests. Encouraging such disciplined examination should enhance the prospect that states will use preventive force in ways consistent with the goals of the UN Charter -- and that their actions will, thanks to the international support they receive, stand a greater chance of succeeding. A state that disregards this process, on the other hand, is more likely to fail, or to pay higher costs in achieving its objectives.
- Integration and Disintegration: The Future of Our Puzzling World
- Overcoming the Obstacles to a Nuclear-Free World
- Nuclear Disorder - Surveying Atomic Threats
- Tension Simmers in Iran
- 2009 Chickens and Their 2010 Roost
- Helping Women Help the World
- Why International Aid Does Not Alleviate Poverty
- Preventive Force, Terrorism and International Security
- The New Energy Order
- Why Failing to Complete Green Revolution Could Bring Next Famine
- Nuclear Disorder - Surveying Atomic Threats
World - Preventive Force and International Security | Abraham D. Sofaer
(c) 2009 Abraham D. Sofaer - Foreign Affairs