Beyond Preemption (Paperback)

Chapter One

The issues of force and legitimacy-of when to use military force, for what purpose, and who should decide-became highly contentious internationally as a result of three developments: the Kosovo campaign of 1999, the terrorist attacks of September 2001, and the Iraq war of 2003. Each of these events raised difficult questions about the continued applicability of the international framework governing the use of force. That framework, enshrined in the United Nations Charter signed at the end of the Second World War, was designed with one principal purpose in mind: to avoid another interstate conflict as devastating and destructive as the one that had just ended. Accordingly, the UN Charter proscribed "the threat or use of force against the territorial integrity or political independence of any state" (Article 2[4]). It recognized only two exceptions to this prohibition: "the inherent right of individual and collective right of self-defense if an armed attack occurs" (Article 51), and any use of force authorized by the UN Security Council in order "to maintain or restore international peace and security" (Article 42).

The Kosovo campaign, in which nineteen NATO countries launched a seventy-eight-day air war to halt Serbian efforts to oust the Albanian population of Kosovo from the country, met neither exception to the prohibition of the use of force. It was not an instance of self-defense, since the people being defended were citizens of the very state that was being attacked. Furthermore, the NATO action was not directly authorized by the Security Council, since at least one permanent member (Russia) had made clear that it would veto any resolution authorizing the use of force in this instance. The terrorist attacks on the Twin Towers and the Pentagon of September 2001 raised to prominence the threat posed by nonstate actors and the issue of how to respond to such an attack. The Iraq war raised the question of whether explicit Security Council authorization was necessary to enforce its resolutions and, importantly, who decides whether this is necessary or not.

To address these questions and seek answers that might gain agreement from a wide range of actors around the world, the Brookings Institution in 2003 launched a major project on "Force and Legitimacy in the Evolving International System." The project consisted of a series of workshops with officials, scholars, and legal and military experts from Europe, Russia, China, Latin America, South Asia, the Middle East, and sub-Saharan Africa. The workshops and a final international conference engaged in wide-ranging discussions of whether and when force might be used and how its use could best be legitimized. This volume builds on these discussions and proposes ways in which a renewed international consensus on these crucial issues might be forged.

The workshop and conference discussions during these three years, which are examined in greater detail by Anne Kramer in the final chapter of this volume, proved to be rich and rewarding, sometimes surprising, and always stimulating. In each session participants examined the appropriateness of using force in dealing with weapons of mass destruction, terrorism, and humanitarian crises, as well as ways (institutional and otherwise) such uses of force could best be legitimized. What follows are some of the project's key findings.

First, there was widespread agreement that force-even when used preemptively-can be an appropriate response to the terrorist threat. Of course, defining what constitutes such a threat is not easy, as discussions of this issue at the United Nations have long underscored. Agreement to deal aggressively with terrorism was particularly strong in Russia, where discussions were held just weeks after the terrorist attack on the elementary school in Beslan that killed more than 300 people. Discussions with South Asians revealed an interesting paradox: while the use of force to confront a terrorist threat (whether preventive, preemptive, or retaliatory) now enjoys widespread legitimacy, its efficacy is increasingly in doubt.

Second, Europeans and Africans, along with Americans, believed that using force to prevent or end widespread humanitarian abuses was appropriate and, when undertaken early enough, likely to be effective. There was strong support for the notion that states have a responsibility to protect their citizens and that their failure to do so puts the onus on the international community to step in and protect these people accordingly. There was no such support for humanitarian intervention among Mexicans, South Asians, or Russians, who regarded the responsibility to protect as an unwarranted interference in the internal affairs of states. However, there were several South Asians who held that if intervention could be justified on the basis of international humanitarian law, states could act on such a basis without prior Security Council authorization provided that they report their actions to the council along with an assessment of the legal grounds for such action. Interestingly, discussions with Chinese scholars demonstrated movement from a stance of strict noninterference toward a more pragmatic evaluation of China's strategic interests-including a belief that China would have supported military intervention in Kosovo if the issue had arisen in 2006 rather than in 1999. The official Chinese view, however, remains distinctly wary of any such interventions.

Third, there was no agreement-even among Americans and Europeans-on how to respond to the proliferation of weapons of mass destruction. Even when the discussion underscored the dire consequences of countries like Iran acquiring nuclear weapons, it was impossible to gain agreement on the need for preemptive action (let alone preventive war). Here, the consequences of the disagreement over Iraq clearly had their most profound implication. Again, interestingly, China's position appears to be evolving from a principled opposition to pragmatic considerations concerning the specificity of the threat, as determined not by whether a country acquires weapons but whether its past behavior suggests their possible use. Chinese participants indicated, for example, that in 2003 Beijing likely would have supported military strikes against Iraq on the scale of the 1998 Operation Desert Fox.

Fourth, most non-Americans, including Europeans, South Asians, and the Chinese, embraced a procedural form of legitimacy, insisting that the UN Security Council is the main, if not only, international body able to authorize the use of force in situations other than self-defense. There was some sympathy for the notion that regional organizations might be able to step in if the UN Security Council would not, but this was still very much seen as a second-best option. There was no willingness to embrace the notion of substantive legitimacy-the idea that the positive outcome of the use of force might itself legitimize its use. Of course, the Kosovo intervention was partly legitimized in this way (and this paved the way to procedural legitimation after the fact). One could not help but wonder during the discussions whether sentiment might have been different if weapons of mass destruction had been discovered in Iraq.

These discussions coincided with the heated international debate that followed the Bush administration's reinterpretation of the framework guiding questions of force and legitimacy and its subsequent decision to invade Iraq. Many of those participating in the meetings were actively involved in the debate, and some helped prepare the report of the High-Level Panel on Threats, Challenges and Change, a panel that UN secretary general Kofi Annan appointed just as the Brookings project got under way. Our discussions and the search for a renewed international consensus on these important issues were therefore very much informed by the UN efforts-and vice versa.

This chapter, however, presents a view of this debate, including its merits and demerits, of one person alone. The conclusions reached and suggestions made are solely my own. They are offered in the hope that others might find them an acceptable way forward.

From Response to Prevention

The scale of destruction caused by the September 11 attacks raised the immediate and important question of how best to prevent another catastrophic event in the future-be it a terrorist attack, use of weapons of mass destruction, or a combination of the two. For the Bush administration as well as others, the answer was to act before another threat could materialize. "I will not wait on events, while dangers gather," President George W. Bush declared in January 2002. "I will not stand by, as peril draws closer and closer. The United States of America will not permit the world's most dangerous regimes to threaten us with the world's most destructive weapons."

While Bush did not explain how the United States would counter this rising danger, it was evident that the administration believed preventive military force would have to be at the core of any successful strategy. This belief rested on two central arguments. First, the key actors that threatened America (rogue states and terrorists) were fundamentally different from the traditional adversaries the United States had long confronted. Whereas strategies of deterrence and containment were appropriate for dealing with the Soviet Union, they would be ineffective in confronting these new threats. "Deterrence," Bush explained, "means nothing against shadowy terrorist networks with no nation or citizens to defend. Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies." In this new security environment, safety could no longer be assured by the ability to defeat threats after they had formed. "If we wait for threats to fully materialize, we will have waited too long."

The second reason for relying on preventive force was the catastrophic cost of misjudging the imminence of the threat. "We don't want the smoking gun to be a mushroom cloud," Condoleezza Rice, Bush's national security adviser, famously declared with reference to Iraq. Whatever the costs of lowering the barrier to using force preventively, the administration argued, they were outweighed by the dangers of waiting too long to act. As the National Security Strategy put it, "the greater the threat, the greater is the risk of inaction-and the more compelling the case for taking anticipatory action to defend ourselves, even if the uncertainty remains as to the time and place of the enemies' attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively."

The United States was not alone in believing that the changing nature of the threat and the costly consequences of miscalculating it required countries to act preventively. Most of the major powers in the world arrived at a similar view. "Containment will not work in the face of the global threat that confronts us," explained British Prime Minister Tony Blair in 2004. "The terrorists have no intention of being contained. The states that proliferate or acquire [weapons of mass destruction] illegally are doing so precisely to avoid containment." Not every threat required military action. "But we surely have a duty and a right to prevent the threat [from] materializing," Blair insisted. "Otherwise, we are powerless to fight the aggression and injustice which over time puts at risk our security and way of life." Similarly, the French government, in a defense white paper released days before the U.S. National Security Strategy was issued, maintained that

we must be able to identify and prevent threats as soon as possible. Within this framework, possible preemptive action is not out of the question, where an explicit and confirmed threat has been recognized. This determination and the improvement of long range strike capabilities should constitute a deterrent threat for our potential aggressors, especially as transnational terrorist networks develop and organize outside our territory, in areas not governed by states, and even at times with the help of enemy states.

Meanwhile, President Vladimir Putin insisted in 2003 that Russia "retains the right to launch a preemptive strike." Defense Minister Sergei Ivanov later elaborated:

The primary task for the armed forces is to prevent conventional and nuclear aggression against Russia. Hence our firm commitment to the principle of pre-emption. We define pre-emption not only as a capability to deliver strikes on terrorist groups but as other measures designed to prevent a threat from emerging long before there is a need to confront it. This is the guiding principle of the profound and comprehensive modernization of our armed forces."

More recently, even a country like Japan has embraced the notion of preemption. "If we accept that there is no other option to prevent a missile attack," then chief cabinet secretary (and now prime minister) Shinzo Abe said in reference to North Korea's missile capabilities, "there is an argument that attacking the missile bases would be within the legal right of self-defense."

The UN Response

The emerging sense that preemptive military action was increasingly justified by the changing nature of the threats confronting the United States and other countries was cause for deep disquiet, not least within the United Nations. "Since this Organisation was founded," UN secretary general Kofi Annan told the General Assembly in September 2003, "States have generally sought to deal with threats to the peace through containment and deterrence, by a system based on collective security and the United Nations Charter." While states of course retained the right of self-defense when attacked, "until now it has been understood that when States go beyond that, and decide to use force to deal with broader threats to international peace and security, they need the unique legitimacy provided by the United Nations." The preemption doctrine thus represented "a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification."

The real question this development raised for Annan, however, was less whether certain states were willing to live up to this precept than whether the rules governing the use of force developed in the wake of World War II were still applicable in today's world of very different, global threats. The UN secretary general appointed a high-level panel of former statesmen (including Brent Scowcroft, Qian Qinchen, Yevgeny Primakov, and Gareth Evans) to answer this and related questions.

The December 2004 report issued by the High-Level Panel on Threats, Challenges and Change revealed an important evolution of thought on the critical question of whether and when to use force. On the question of whether the right to self-defense included a state's right to use force preemptively when faced with an imminent attack, the panel argued that it does. As to threats that are not imminent but are-like terrorism and weapons proliferation-grave and perhaps growing, the panel concluded that "if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action." Indeed, the panel argued that the Security Council could authorize force against a state as long as it believed such action to be necessary for maintaining or restoring international peace and security. This would be the case "whether the threat is occurring now, in the imminent future or more distant future; whether it involves the State's own actions or those of non-State actors it harbours or supports; or whether it takes the form of an act or omission, an actual or potential act of violence or simply a challenge to the Council's authority." Yet, while arguing that there are a broad range of circumstances under which force might be used, the panel declined to endorse the Bush administration's claim that under any of these circumstances states could act on their own. That, it argued, was a recipe for international anarchy rather than international order. "Allowing one to so act is to allow all."

(Continues...)

---

Excerpted from Beyond Preemption Copyright © 2007 by Brookings Institution Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---