A Duty to Prevent

Lee Feinstein and Anne-Marie Slaughter

From Foreign Affairs, January/February 2004

Summary:  The unprecedented threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime. The international community has a duty to prevent security disasters as well as humanitarian ones -- even at the price of violating sovereignty.

Lee Feinstein is Acting Director of the Washington Program of the Council on Foreign Relations. Anne-Marie Slaughter is Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University and President of the American Society of International Law.

Granted, under the charter, the UN Security Council may take action when it determines the existence of a threat to international peace and security. And nothing prevents it from identifying a government with no internal checks on its power that possesses or seeks to acquire WMD as a threat to the peace and taking measures against it. But articulating and acknowledging a specific duty to prevent such governments from even acquiring WMD will shift the burden of proof from suspicious nations to suspected nations and create the presumption of a need for early and, therefore, more effective action.

Consider, for instance, how recognizing a duty to prevent could have changed the debate over the war in Iraq. Under existing law, the Bush administration could justify intervention only by arguing that Iraq held WMD in violation of Security Council resolutions. Even though Saddam Hussein's Iraq was subject to special Security Council restrictions precisely because of its earlier illegal nuclear program and use of chemical weapons, the United States could not argue that Saddam posed a threat warranting intervention simply because of his absolute power, his past behavior, and his expressed intentions. Now suppose that last March, the United States and the United Kingdom had accepted a proposal by France, Germany, and Russia to blanket Iraq with inspectors instead of attacking it. Presumably those inspectors would have found what U.S. forces seem to be finding today -- evidence of Iraq's intention and capacity to build WMD, but no existing stocks. Would the appropriate response then have been to send the inspectors home and leave Saddam's regime intact? The better answer would have been to recognize from the beginning the combined threat posed by the nature of his regime and his determination to acquire and use WMD. Invoking the duty to prevent, the Security Council could have identified Iraq as a subject of special concern and, as it was blanketing the country with inspectors, sought to prosecute Saddam for crimes against humanity committed back in the 1980s.

The inability to prevent WMD proliferation by dangerous regimes is a concern that has confounded at least the last three U.S. administrations. President George H.W. Bush defined the issue in terms of "outlaw" states, to distinguish regimes that followed international rules from those that defied them. President Bill Clinton used the term "rogue states" until 2000, when his administration began referring to "states of concern" to signal that the goal of U.S. policy was eventually to reintegrate states, if not their dictatorial rulers, into the international system. The present administration's use of the term "axis of evil" suggests a sterner version of the first Bush administration's approach. It leaves little room for diplomacy, forcing the United States to either advocate regime change or do nothing.

All these approaches, moreover, miss a key point. It is not states that are the danger, but their rulers -- a relatively small group of identifiable individuals who seek absolute power at home or sponsor terrorism abroad. These rulers and their regimes can be identified by evaluating their behavior according to criteria already documented in the UN system: the rule of law and human rights; rights of association and organization; freedom of expression and belief; and personal autonomy and economic rights. The international system remains uncomfortable distinguishing one country from another, but such distinctions are already embedded in the UN system and they should be emphasized as the basis for effective international action to deal with the dangers we now face.

WHERE SOVEREIGNTY STOPS

In the wake of Somalia, Haiti, Rwanda, Bosnia, and Kosovo, a halting process of revising old rules to meet today's threats has begun. In the fall of 2002, Secretary-General Kofi Annan repeated a challenge he first made to un members in 1999, urging the Security Council to discuss "the best way to respond to threats of genocide or other comparable massive violations of human rights." Although the Security Council has yet to heed Annan's call, the Canadian government did, appointing former Australian Foreign Minister Gareth Evans and Annan's Special Adviser Mohamed Sahnoun to head a distinguished global commission of diplomats, politicians, scholars, and nongovernmental activists. In December 2001, the commission issued a report, titled "The Responsibility to Protect," that took on nothing less than the redefinition of sovereignty itself. The Evans-Sahnoun Commission argued that the controversy over using force for humanitarian purposes stemmed from a "critical gap" between the unavoidable reality of mass human suffering and the existing rules and mechanisms for managing world order. To fill this gap, the commission identified an emerging international obligation -- the "responsibility to protect" -- which requires states to intervene in the affairs of other states to avert or stop humanitarian crises.

This concept challenges the traditional understanding of sovereignty by suggesting that it implies responsibilities as well as rights. According to the commission, sovereignty means that "the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare;" that "the national political authorities are responsible to the citizens internally and to the international community through the UN;" and that "the agents of state are responsible for their actions; that is to say they are accountable for their acts of commission and omission."

The commission's boldest contribution, however, was to argue that the responsibility to protect binds both the individual states and the international community as a whole. The commission insists that an individual state has the primary responsibility to protect the individuals within it. But where the state fails to carry it out, a secondary responsibility to protect falls on the international community acting through the UN, even if enforcing it requires infringing on state sovereignty. Thus, "where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of nonintervention yields to the international responsibility to protect."