Ilankai Tamil Sangam

Association of Tamils of Sri Lanka in the USA

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The Future of Preemption

by Ivo Daalder and James Steinberg, Los Angeles Times, December 4, 2005

The notion of conditional sovereignty is central to the emergence of a new norm of state responsibility. In September, the UN members embraced the idea that states have a responsibility to protect their own citizens from genocide, mass killing, and other gross violations of human rights.

[This summarizes a full length article in The American Interest, Winter 2005]

Among the many casualties of the Iraq War may well be the Bush doctrine of preemption. While many will greet the apparent death of preemption with relief, it would be unfortunate if the entire concept were abandoned. For the problem with the Bush strategy has been less the idea of preventive force, than its unilateral application. Unilateral, preventive wars of regime change should rightly be relegated to the past. But circumstances will arise in the future where policy makers will want to have the option of using force preventively -- be it to kill terrorists, prevent weapons proliferation, halt genocidal killing, stop the spread of deadly disease, or deal with other such dangers. The proper task, then, is not to bury the concept, but to make it a more limited and more legitimate tool for addressing new security threats.

The Bush doctrine represented a major departure from internationally agreed rules governing the use of force. Those rules, enshrined in the UN Charter, limit the use of force to self-defense in case of an armed attack or military actions authorized by the Security Council to maintain or restore international peace and security. Following 9/11, the Bush administration argued that the right to self defense must include the right to use force against terrorist and rogue state threats before they had "fully formed" -- before terrorists had struck, rogues had used nuclear weapons, or dangerous technologies had fallen into the wrong hands.

In response to the Bush administration's challenge to the agreed rules, the UN Secretary General appointed a high level panel to examine the consequences new threats posed for the old rules governing the use of force. The panel's December 2004 report represented an important evolution on the critical question of whether and when to use force. It argued that states had a right to defend themselves not just against actual threats, but also against those that were imminent. It also recognized that force might be appropriate to deal with latent threats (like terrorism and proliferation), but only if its use was authorized by the Security Council. It thus declined to endorse the Bush administration's claim that states could act on their own in such circumstances. That, the panel argued, was a recipe for international anarchy rather than international order.

Welcome as this evolution in international thinking was, it failed to resolve the more fundamental problem created by the fact the threats we face today are very different from the threats states faced at the time of the UN's founding in 1945. Then, states worried about aggression across borders and external interference in their affairs. Now the main worry is about what states do within their borders -- how they treat their citizens, whether they harbor terrorists, or if they are developing weapons of mass destruction -- rather than what they do beyond them.  

The UN System was not set up to deal with these type of threats, given that it stresses both the sovereign equality of states and the principle of non-interference in their internal affairs. So it is hardly  surprising that it has proven difficult to gain consensus within the Security Council, let alone among the wider UN membership, on what constitutes the new threats and how best to respond to them. Yet, the answer to this failure is not to ignore the rules and to go it alone, but rather to work towards adapting the rules to a world in which sovereignty is increasingly conditional on how states behave internally.

The notion of conditional sovereignty is central to the emergence of a new norm of state responsibility. In September, the UN members embraced the idea that states have a responsibility to protect their own citizens from genocide, mass killing, and other gross violations of human rights. The same logic suggests that states also have a responsibility to prevent developments on their territory that pose a threat to the security of others -- such as developments relating to weapons of mass destruction (like their acquisition or the failure to secure weapons, materials, or deadly agents against possible theft or diversion); the harboring, support, or training of terrorists; or environmental dangers (like failing to prevent the spread of dangerous diseases or the destruction of the rain forest).

When states fail to meet their responsibilities, the international community will need to do so. Oftentimes diplomacy and economic pressure will be sufficient, but there will also be times when the most effective way to address an emerging threat is through limited military action undertaken before threats are imminent -- before enough fissile material has been produced to make nuclear weapons; before weapons in unsecured sites or deadly diseases in laboratories have been stolen; before terrorists have been fully trained or are been able to fully hatch their plots; before large-scale killing or ethnic cleansing has occurred; before a deadly pathogen has mutated and spread around the globe

One problem with the Bush doctrine, then, is not that it relies on preventive force too much, but that it has conceived of its use too narrowly -- primarily to deal with terrorism and as a means of forcible regime changes.

The other problem with the Bush doctrine is its insistence that individual states -- or at least the United States -- must have the right to decide when preventive force is justified, even though the threats it seeks to address are global in scope and affect the security of many. The decision to use force in these instances cannot be one state's alone.

Who, then, should decide? The Security Council remains the preferred vehicle for authorizing such action, because since the end of the Cold War it has emerged as the most legitimate forum for deciding these questions. Consider this: prior to the Gulf War in 1991, the Council authorized the use of force beyond traditional peacekeeping operations on only two occasions (Korea and the Congo); since then it has authorized force no less than seventeen times. Even in the case of the Iraq War, the Bush administration maintained that force was authorized under prior UN Security Council resolutions.

Yet, even as it has acted more frequently, states have not always been able to count on the Council to make timely decisions. It acted late in the case of the former Yugoslavia, ineffectively in response to Darfur, and not at all during the genocide in Rwanda. It has refused to take up the matter of North Korea's non-compliance with the nuclear Non-Proliferation Treaty and wants no part in deciding how to address similar compliance concerns with respect to Iran. None of the proposed reforms on the table are likely to improve this record soon.

One alternative to Security Council approval, is to accept the legitimacy of preventive interventions authorized by regional organizations. The model for this is Kosovo, where NATO decided to intervene to prevent a worse humanitarian calamity even though the Council had failed to authorize the action. Regional organizations are a particularly appealing venue for deciding these questions, since there is likely to be a great deal of convergence between those who bear the costs and those who reap the benefits of the action. Moreover, when all of the countries in the region reach a similar conclusion as to the necessity and efficacy of a preventive action, there is a greater chance that there is a valid factual predicate for acting. Of course, reliance on regional organizations is no panacea. Some threats are global rather than regional in scope and thus beyond the purview of any one regional organization to handle. And in other cases there may be no meaningful regional organization to authorize a decision to use force.

Which leaves the alternative, should the UN or regional route fail, of creating a coalition of like-minded states. Since democracies should have a particular interest in upholding the norm of state responsibility, a coalition of democracies might provide such an alternative. Given that the governments involved are themselves legitimate by dint of having been elected, their decision to act in concert would carry more legitimacy than a decision of any one of them acting alone. Moreover, if it proves impossible to convince any or most of one's democratic peers that a state has failed to live up to its responsibilities and that intervention is therefore justified, that should in and of itself give one pause about proceeding. Iraq was a case in point. Finally, the knowledge that an alternative decision-making body exists may provide the Security Council or a regional organization with sufficient incentive to act in the first place.

There is a role for preventive military force to address the security challenges of the global age.  But understanding that role is only the first step. Establishing agreed standards for its use is the second, and embedding those standards in an institutional setting that can function effectively is the third. The Bush administration has got the first step right, and the logic of its arguments builds toward the second. But it has gotten the third step wrong. Unilateralism is not the only alternative to the UN Security Council -- regional organizations and a new coalition of democratic states offer ways to legitimize the use of force when the Council fails to meet its responsibilities.

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