Legitimacy and the Use of Force
The release of the "Report of the Secretary-General's High-level Panel on Threats, Challenges and Change" (High-level Panel Report) comes at a time of great uncertainty regarding the future of the United Nations. The report is helping to inform discussion on the reform of the UN, particularly the composition of the Security Council, UN management, oversight, and mission. Among other key issues considered by the Panel are conflict prevention, the use of force, peace building, controlling weapons of mass destruction, and addressing non-traditional threats such as environmental security and health crises. The report makes valuable contributions in all of these areas, especially as it insists on considering the context of an increasingly integrated world where no country can assure its own security without collective action.
On March 23, 2005, the Woodrow Wilson International Center for Scholars held its second of four meetings on the United Nations High-Level Panel (HLP) on Threats, Challenges and Change. The meeting considered the HLP's recommendations on the use of force, when it is legal and legitimate under the UN Charter, and the role of the UN Security Council (UNSC).
General Scowcroft explained that the UN is still fighting to deal with the contradiction between the UN Charter's emphasis on sovereignty and the right to protect, and that it is through this contradiction that the HLP viewed the contemporary threats facing states. Scowcroft argued that the most controversial breakthrough presented by the HLP Report might be found in its coverage of terrorism. Essentially, the HLP has offered a new definition of terrorism, characterizing all groups or individuals that harm civilians as committing terrorism. Such a definition implies that so-called freedom fighters, whose actions include harming civilians, will no longer be considered legitimate forces of change.
Inherent to the HLP's discussion of contemporary threats was the UN Charter's primary article on the use of force and self-defense: Article 51. According to Scowcroft, the HLP debated extensively about the fate of Article 51, and the ultimate consensus was that it should not be changed. Revising Article 51 would leave it open to a series of assaults, subsequently leaving it meaningless. Rather, the HLP amplified the meaning of Article 51 by incorporating the notion of preemption. Scowcroft said that the HLP recognized that "a threat in the nuclear age can be such that to wait until a state is attacked can be a defeat." Therefore, Article 51 was redefined to consider "a state of imminent attack, where there are no other alternatives foreseen than to respond by dealing with the imminent attack." The HLP's distinction between preemption and prevention, Scowcroft argued, was that the latter did not respond to an immediate threat. Thus, he described Security Council's overall role in sanctioning the use of force as inversely proportional to the immediacy of the threat. That is to say, the less immediate the threat, the greater role there is for the Security Council.
Scowcroft's comments also focused on the Report's innovative handling of the topic of nuclear weapons. The HLP agreed that the nuclear Non-Proliferation Treaty (NPT) had one major gap: at its original drafting, the NPT assumed that obtaining the nuclear device was the most challenging part of building a weapon. With the prominence of the Internet, however, acquiring nuclear devices has become relatively easy. Today, the most difficult aspect of making a weapon is enriching uranium or extracting plutonium, two actions which are legal under the NPT. Considering this discrepancy in the NPT, the HLP proposed that the International Atomic Energy Agency (IAEA) guarantee a fuel supply for nuclear reactors to those states in good standing with the IAEA. An additional caveat of the HLP's proposal would be universal prohibition from enriching uranium or extracting plutonium, much to the chagrin of North Korea, Brazil, and Iran.
Lee Feinstein lauded the UN, observing that in a time of external criticism, the UN responded by reflection and self-criticism. He regarded the HLP Report as a "watershed in self-evaluation," comparing it to the Arab Human Development Report. Feinstein also noted that the Report represents a significant turning point in international law by recognizing, for the first time, the important roles of individual states. In effect, the Report promotes the idea of "conditional sovereignty," in which some states have special rights and responsibilities and play a special role in the international community, while other states that fail to comply with international conventions lose various rights and may even lose their sovereignty.
Although the Bush administration still has not offered a definitive response to the Report, Feinstein observed that the Report-—and especially the changes to Article 51-—is consistent with U.S. foreign policy. Paramount for the U.S. is the Report's new definition of terrorism, which, Feinstein argued, was a major achievement in that it does not make exceptions for terrorists. Feinstein noted that the Report is "very much in keeping with Bush's national security strategy," as it recognizes states' inherent rights to self-defense, as well as the relationship between threats from developing states and failed states.
Although Feinstein praised the Report at large, he highlighted several weaknesses. First, the Report establishes that contemporary threats will make it more likely that the UNSC will act, but it does not address the issue of what happens when the UNSC fails to act. Feinstein labeled this failure to act as the "Kosovo problem." Second, although the Report makes major advances on proliferation issues, it does not extend the idea of conditional sovereignty to proliferation issues. For instance, the problem of closed societies posing special dangers-—especially if they have nuclear weapons-—is not addressed in the Report. Finally, Feinstein applauded the Secretary General's report on UN reform and agreed with the notion of creating a Human Rights Council.
Michael Glennon was less praiseworthy of the HLP Report, and he identified two major flaws: "it misdiagnosed the problem, and it got the remedy wrong." He explained that it is necessary to divide the project of diagnosis into three considerations: what are the threats, what are the rules; and do those rule work.
In analyzing the nature of threats, Glennon argued that the Report operates upon the faulty belief that every state has the same perception of threats. In fact, the notion that "a threat to one is a threat to all" is not a reality for modern states. Disasters occur precisely when particular states do not respond to humanitarian crises, because certain tragedies are not perceived to be threatening. In analyzing the rules related to threats, Glennon observed that the UN considers use of force within the confines of the "imminence rule," holding that threats must be imminent in order for states to take legitimate action against them. In actuality, Glennon noted, international law reflects that treaties and customs are the only sources of rules concerning use of force. Furthermore, the UN Charter is devoid of any mention of responding to an imminent threat, and there is no historical precedence for waiting to act until a threat becomes "imminent." Finally, in considering whether or not the existing rules work, Glennon argued that the Report contains little information about the effectiveness of the "imminence rule." As well, the recommendations of the HLP do not consider the number of times that the existing "imminence rule" has been violated by the international community.
For Glennon, because the Report misdiagnoses the problem of threats, the remedy offered by the Report is also flawed. The imminence of a threat is not appropriate criteria on which to base the use of force. Glennon argued that legitimacy is merely a semantic term, similar to the just war theory invoked to justify past military actions, and he observed that the adoption of this concept into formal vernacular does not change or improve its content. Instead, Glennon suggested that other features should be utilized in decisions regarding the preemptive use of force: the gravity of the threat, and the probability of that threat's occurrence.
Ultimately, Glennon concluded that the geopolitical sources of international violence and conflict are not within the scope of the UN's capacity for management. While the U.S. should not seek to destroy the UN, Glennon did warn that sustained use of the "imminence rule" will cause the UN to appear more inept, and that the U.S. would likely be blamed for this ineptitude. He recommended that those striving to reform the UN examine the underlying factors of human nature that hamper member states' enthusiasm for bettering the UN's performance.
The Conflict Prevention Project's four-part meeting series on the High-level Panel Report is funded through the generosity of the United Nations Foundation and Better World Campaign.
Drafted by Anton Ghosh and Julia Bennett