Patrick Frost pointed my way to a Foreign Affairs article published earlier this year, The Best Defense? Preventive Force and International Security, by Abraham Sofaer (downloadable here if you have access). Sofaer argues that unilateral uses of preventive military force are illegal but can be legitimate, and thus states should feel free to eschew international law and undertake preventive military action if the threat they face is great enough.
Sofaer chooses his supporting evidence selectively. He likes to cite the report of the 2004 UN High-Level Panel on Threats, Challenges and Change, as if the report supports his conclusion. Sofaer notes that the report states:
…in the world of the twenty-first century, the international community does have to be concerned about nightmare scenarios combining terrorists, weapons of mass destruction and irresponsible States, and much more besides, which may conceivably justify the use of force, not just reactively but preventively and before a latent threat becomes imminent.
He notes that the report concludes that the UN Security Council should adopt:
…a set of agreed guidelines, going directly not to whether force can legally be used but whether, as a matter of good conscience and good sense, it should be.
This is a great idea, Sofaer asserts, because it would codify notions of legitimacy distinct from international law, thus giving States guidelines for undertaking illegal but legitimate actions, such as the use of unilateral preventive military force. But this is absolutely, in no way, even close to what the UN report actually concludes (you can read the report here). The report actually concludes that the Security Council, and the Security Council alone, should have the right to authorize preventive military action. Here’s what the report says:
190. The short answer is 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 if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment — and to visit again the military option.
191. For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.
As for the guidelines proposed by the report, the intent was not to give States guidelines for illegal but legitimate actions, but rather:
…to maximize the possibility of achieving Security Council consensus around when it is appropriate or not to use coercive action, including armed force; to maximize international support for whatever the Security Council decides; and to minimize the possibility of individual Member States bypassing the Security Council.
The exact opposite of what Sofaer wants! That’s some impressive selective quoting on Sofaer’s part. His article is peppered with similar cherry-picking evidence. For example:
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 Kosovo was technically illegal because the UN Security Council did not approve it, but it was sanctioned by NATO and widely supported.
On “responsibility to protect” (R2P), Sofaer doesn’t note that the international consensus is to keep R2P’s implementation under the control of the Security Council, for the same reason the 2004 report concludes the Security Council should be the sole arbiter of legal and legitimate uses of preventive force: so States can’t just do what they want. On Kosovo, Russia and China strongly opposed the intervention, as demonstrated by Russia’s proposed Security Council resolution (submitted with Belarus and India and voted for by Russia, China, and Namibia) stating “that such unilateral use of force constitutes a flagrant violation of the United Nations Charter.” The actiona may have been supported in the West, but a look at the opinion of the rest of the world reveals a different story. Sofaer does get one thing right. He asserts:
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.
His attempts to argue that the above points are outweighed by the potential benefits of unilateral preventive action are sloppy and unconvincing.
