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The Best Defense?
Legitimacy and Preventative Force
By Abraham D. Sofaer
Hoover Institution PressCopyright © 2010 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
Grave new threats to peace and security have led to increased efforts at the national and international level to prevent the harm these threats can cause. While punishing perpetrators and assisting victims after the fact is essential and may deter attacks, the highest level of protection comes from actually preventing harm. Terrorist attacks, including those of September 11, 2001, on the United States and subsequent attacks in Asia and Europe, have killed or injured thousands and caused grave social and economic disruption. States have also inflicted massive deprivations of human rights on their own populations. While these acts are illegal under established principles of international law, States are often unable or unwilling to prevent or punish these violations, and sometimes cause or seek to exploit such conduct. The possible acquisition of weapons of mass destruction (WMD) greatly enhances the threats posed by terrorist groups and irresponsible States.
The value of preventing harm is universally recognized, whether it involves keeping a disease from spreading, forestalling violent crime, or heading off terrorist attacks or even genocide. States routinely deal preventively with the threat of domestic terrorist attacks, human rights violations, and other criminal activities. States also cooperate with each other in implementing preventive strategies. And prevention is the natural objective of military measures taken during armed conflict. While the use of preventive force in these contexts raises issues as to its proper scope and implementation, States in general have broad authority to take reasonable and necessary preventive steps.
States are far more constrained, however, in the non-consensual, international use of preventive force. The United Nations Charter gives the Security Council authority to determine when threats to international peace and security exist, and to authorize the use of force in response to such threats, including threats from terrorism, WMD, and violations of human rights. When the Charter was written, the Council was expected to have at its disposal the armed forces necessary to implement its decisions and thereby to prevent the harm such threats have caused in human history. Based in part on this expectation, the Charter limits the power of individual States to use force in exercising their "inherent" right to defend themselves against armed attacks, or to act collectively in doing so. This authority enables States to use preventive force only when an armed attack against them is underway or so imminent as to preclude resort to the Council for assistance. But the Council, forced to rely on ad hoc contributions of troops from its member States and crippled by disagreements among its permanent members, has been unable to play its intended role. States have therefore been left to deal unilaterally or in alliances with threats that differ from the conventional armed attacks contemplated in the Charter. In responding to the dangers posed by these unconventional threats, States have resorted to a range of preventive actions within the sovereign territories of other States. The propriety of such actions has justifiably become a matter of widespread concern.
The need to respond to international threats through force varies with the potential consequences of the perceived threat and the likelihood of its realization. Some current threats are widely regarded as posing substantial danger, and efforts have been underway for many years, nationally and internationally, to prevent them from being realized. Whether these efforts should include the use of force depends not only on the potential benefits of preventive actions (i.e., the potential harm avoided), but also on potential consequences and costs. Even preventive medicine, despite its benefits, at some point becomes infeasible or undesirable due to adverse consequences and expense.
The use of anticipatory force in international security affairs, including "preventive force," became a matter of heightened interest with the issuance of the 2002 National Security Strategy for the United States (2002NSS). The 2002NSS stated that the United States, despite its unrivaled power relative to other States, faces grave and unprecedented threats that require greater reliance on preventive force. Relying solely on defensive measures, the report concluded, was no longer an effective plan for U.S. security, due to the nature of unconventional attacks and the capacity and willingness of States and non-state actors to target noncombatants. The increasing potential for such States and non-state actors to obtain WMD makes the threat particularly strong.
The 2006 National Security Strategy (2006NSS) reaffirmed these conclusions. It cited four steps it considers necessary for "short term" U.S. security (page 12):
Prevent attacks by terrorist networks before they occur.
Deny WMD to rogue states and to terrorist allies who would use them without hesitation.
Deny terrorist groups the support and sanctuary of rogue states.
Deny terrorists control of any nation for use as a base and launching pad for terror.
The decision by the U.S. government to make possible use of preventive force an explicit aspect of its national security plan drew widespread debate as to its effectiveness, legality, and legitimacy. The United States had considered and rejected using preventive force during the Cold War, navigating through that period without a major conflict with the Soviet Union or China. The United States' definition of the concept of self-defense (based on "reasonableness") is less constraining than the view of the International Court of Justice (ICJ), which requires an actual or imminent "attack" before using force. It has also at times advocated and used "active measures" in response to terrorist attacks, rather than relying exclusively on criminal investigation and prosecution for deterrence. But the United States had not previously suggested that force may be used to prevent attacks that are anticipated, but neither imminent nor part of an already established pattern of aggression. Also, while the United States has always claimed (and often exercised) the right to use force without Security Council approval when necessary, it subscribes with its NATO allies to the principle that the Council has the primary responsibility for international peace and security. Neither the 2002 nor the 2006 National Security Strategy, however, mentions the Security Council's role.
The 2002NSS and 2006NSS generated considerable criticism and concern. But the premise that prevention must be the primary objective of national and international security strategy in dealing with contemporary threats has widespread support. The seriousness of the threat posed by extremist groups and irresponsible regimes was demonstrated by Al Qaeda's repeated attacks: on the World Trade Center (1993), U.S. embassies in Africa (1998), the USS Cole in Yemen (2000), and the World Trade Center and Pentagon (2001). By 2001, Al Qaeda had become a worldwide presence, sponsored by the Taliban regime in Afghanistan and supported by other States and Islamic groups, despite its leaders' avowed objectives and their interest in acquiring and using WMD. Since then, the Taliban regime has been removed from power, but Taliban resistance continues in Afghanistan through suicide bombings and other forms of terrorism. The Taliban also controls areas of both Afghanistan and Pakistan. Moreover, Al Qaeda and its supporters have been able to attack civilians in Indonesia (2002), Morocco (2003), Spain (2004), and England (2005), killing almost 500 people and injuring many more. Al Qaeda in Iraq participated actively in an insurgency that has killed or injured many thousands of civilians, along with Iraqi and U.S. forces, and disrupted political and economic progress. Iran and Syria actively support Hezbollah in Lebanon and Hamas in Gaza, though both groups have attacked Israel indiscriminately. Finally, grave human rights violations have taken place in several States in recent years, without effective preventive actions by the international community or individual States.
The importance of these issues led scholars at Stanford University to form a study group to evaluate legal and policy concerns. The Stanford Task Force on Preventive Force met periodically during 2005 and 2006 with experts in relevant fields to consider the need for, and implications of, increased reliance on preventive force. The meetings were chaired by former Secretary of State George P. Shultz, the Thomas W. and Susan B. Ford Distinguished Senior Fellow at the Hoover Institution, and Dr. Coit D. Blacker, director of Stanford's Freeman Spogli Institute for International Studies, and with the sponsorship of the Hewlett Foundation.
The Task Force recognized from the outset that a State considering force in response to a security threat must first exhaust the full range of alternatives. Both the 2002NSS and 2006NSS discuss measures short of force, as do many other studies, including the Report of the High-level Panel on Threats, Challenges and Change (High-level Panel report), and individual studies such as Ashton B. Carter and William J. Perry's Preventive Defense (Brookings 1999). The 2006NSS states, in summarizing the 2002 position (page 18): "Our preference is that nonmilitary actions succeed." The Task Force agrees that, before resorting to any use of force, a State should utilize fully and creatively all available measures to deal with security challenges. This position was consistently stressed and universally supported in discussions held by the Task Force with other U.S. and foreign national security practitioners and scholars.
Where preventive measures short of force fail to resolve security threats, however, resort to force may be the only viable option. The Task Force has therefore considered the propriety of using force when necessary to prevent certain types of anticipated attacks, even though they may not be "imminent," and even without Security Council approval. These issues have generated significant debate among governments, national security professionals, and scholars throughout the world.
After an internal review, the Task Force prepared a written analysis to facilitate discussions with other practitioners and scholars, within and outside the United States. These questions were posed at subsequent Task Force meetings:
Has the world changed in ways that require or permit greater reliance on preventive force, and if so in what ways?
How does the meaning of "preventive force" differ from "preemption" and other uses of force considered lawful?
What are the dangers and limitations of relying on preventive force in dealing with security threats?
To what extent, and for what purposes, do States use preventive force?
Do alternatives exist to the legal standards traditionally viewed as governing uses of preventive force?
Is preventive force inherently illegitimate due to unavoidable uncertainties caused by inadequate intelligence?
When, if ever, would States be justified in using preventive force without Security Council approval?
What standards and procedures could enhance the legitimacy of preventive force?
An initial version of the Task Force's analysis was considered May 25–27, 2005, at a conference at Stanford University. A second version, revised to reflect comments made then, was considered at a meeting March 15–16, 2006, at the Woodrow Wilson School of Public and International Affairs, Princeton University, chaired by then Dean Anne-Marie Slaughter. That version was further revised for use in discussions with European officials and scholars at a meeting held at the Rockefeller Center in Bellagio, Italy, on June 10–13, 2007, and again for use at a meeting with Asian scholars May 25–28, 2008, in Gotemba, Japan. The draft report was then circulated to African and Latin American practitioners and scholars. Revisions based on the Asia meeting, and on comments from African and Latin American consultations, are incorporated into this Report, now in its final form.
The Task Force hopes that this study provides a practical guide to identifying and considering the issues relevant to preventive uses of force, thereby enhancing the prospect that such uses of force, if undertaken, advance national and international security and the purposes of the United Nations Charter.CHAPTER 2
Defining Preventive Force
The use of force to prevent harm differs in theory and practice from using force to preempt an armed attack. Both are forms of anticipatory force, but the concept of preemptive force is historically associated with response to an armed attack believed to be "imminent" as contrasted with an attack expected at an unknown time. Preemption is widely considered a limited and legally accepted extension of the right of self-defense that has been recognized in international law under Article 51 of the United Nations Charter. Prevention, by contrast, when used in a defensive context, is understood to mean the use of force earlier than the point of "imminence," the point at which preemption is permitted. Prevention may also be undertaken to forestall the realization of threats other than conventional attacks. These definitions summarize the differences:
To "preempt" is to use force against an attack that is believed to be imminent based on evidence that hostile action has begun or is about to occur.
To "prevent" is to use force against an anticipated attack based on a judgment that the attacker will use existing or potential means to attack in the future, or to engender other types of harm, including, for example, harm to hostages, attacks by non-state actors, or the mistreatment by a State of its own nationals.
In short, prevention is not just a matter of striking first, before an expected but non-imminent attack, but also any use of force against any threat that does not qualify as an attack or imminent attack under international law.
The distinction between preemption and prevention is important. Preemption strongly implies that an attack is about to occur, thereby establishing a direct relationship between the use of preemptive force and the UN Charter's standard for self-defense. An imminent attack is also more likely to occur than an attack that is merely anticipated. That a threat is non-imminent does not, however, mean that prevention of the hostile action at a time earlier than would be allowed under the doctrine of preemption will necessarily confer fewer benefits or entail greater costs than preempting an imminent attack. The need for applying preventive force will likely depend on considerations other than those that determine the appropriate use of preemptive force.
Justification. Preemptive uses of force are directly related to the U.N. Charter's authorization in Article 51 of the use of force in self-defense "if an armed attack occurs against a Member of the United Nations ..." Preventive force, on the other hand, has been considered and used historically not only to prevent attacks that are expected though non-imminent, but also to prevent other types of threats, and even to advance a State's self-interest. Preemptive actions are also generally more readily defensible than preventive actions, because it is possible to determine the need for preemptive action with a high degree of confidence through the actions and statements of a hostile actor. The need for preventive action is often (though not always) based on less-certain evidence.
In specific situations, a preemptive action, though legally justifiable, may actually be undertaken to advance the preempting State's self-interest. Preventive action, on the other hand, may be undertaken for unselfish purposes such as saving foreign nationals or domestic populations from serious deprivations of their human rights. Similarly, many threats that States currently face may be more potentially damaging than an armed attack, including terrorist infiltrations and suicide bombings. The evidence supporting preventive actions may also be extremely strong, as in interventions that do not qualify as armed attacks. The international community has recognized as justifiable and within the rubric of self-defense some preventive actions that do not meet the current legal standard to justify a typical action in self-defense.
Likelihood of Attack. An important consideration in contrasting preemptive and preventive force is the likelihood that an anticipated attack will occur if effective action is not taken. Attacks that are imminent would seem, in general, to be more probable actually to occur than attacks anticipated at an indefinite time in the future. Attacks that seem imminent may, however, not actually occur. Furthermore, while non-imminent attacks may, in general, be less likely to occur than imminent attacks, the perceived likelihood of non-imminent attacks will vary substantially, depending, among other things, on the nature and motivation of the threat, the prior conduct and capacity of the State or group from which the attack is anticipated, and evidence of the State's or group's intentions. The more likely a non-imminent attack, the more it may justifiably provoke the high degree of urgency associated with attacks that are imminent. A particularly important consideration is the extent to which the anticipated attacker is believed to be vulnerable to deterrence. It is reasonable to conclude that a State or group prepared to pay any price (including suicide or other seemingly irrational costs) to achieve its objective is more likely to attack a State than a less determined or more rational adversary.
Excerpted from The Best Defense? by Abraham D. Sofaer. Copyright © 2010 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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