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threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime.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.

BEHIND CLOSED DOORS

By the time the Evans-Sahnoun Commission issued its report, in December 2001, much of the world was focused on the most dramatic of the world's new threats: an emerging breed of catastrophic terrorism. The prospect that al Qaeda or a comparable group might gain access to WMD drove the Bush administration in the fall of 2002 to announce a doctrine of preemption in its National Security Strategy. In the ensuing controversy, humanitarian concerns took a back seat to the imperatives of national security, narrowly defined. But today the links between the two sets of issues, especially the need to tackle them with proactive strategies, are becoming more evident.

The commission's effort to redefine basic concepts of sovereignty and international community in the context of humanitarian law are highly relevant to international security, in particular to efforts to counter governments that both possess WMD and systematically abuse their own citizens. After all, the danger posed by WMD in the hands of governments with no internal checks on their power is the prospect of mass, indiscriminate murder. Whether individuals are targeted for execution over time or vaporized in a single instant, the result is the same: a massive and senseless loss of life. We argue, therefore, that a new international obligation arises to address the unique dangers of proliferation that have grown in parallel with the humanitarian catastrophes of the 1990s.

The duty to prevent is the responsibility of states to work in concert to prevent governments that lack internal checks on their power from acquiring WMD or the means to deliver them. In cases where such regimes already possess such weapons, the first responsibility is to halt these programs and prevent the regimes from transferring WMD capabilities or actual weapons. The duty to prevent would also apply to states that sponsor terrorism and are seeking to obtain WMD.

This responsibility would apply to cases where the underlying set of agreements restricting WMD programs -- the Nonproliferation Treaty (NPT), the Biological Weapons Convention, and the Chemical Weapons Convention -- has not prevented a regime without internal checks from pursuing dangerous weapons, or when such a state withdraws from its obligations or cheats on them, or when a gap in existing rules needs to be filled to prevent such a regime from acquiring WMD or the means to deliver them.

Why emphasize the absence of internal checks on a government's power? We are not trying to distinguish "good" governments from "bad" governments, much less democracies from nondemocracies. Nor are we arguing that governments that have internal checks on their behavior always obey international law; they are bound by the same international norms restricting the development and use of weapons of WMD as are other states, and their compliance must be monitored too. But the behavior of open societies is subject to scrutiny, criticism, and countermeasures by opponents, at home and abroad. Also, existing nonproliferation agreements can circumscribe these states' behavior or, if political circumstances change dramatically, as they did, say, in South Africa in 1989 and in Argentina and Brazil in the 1990s, they can provide a path for states to give up their nuclear ambitions or, in the case of Pretoria, even their weapons.

On the other hand, the international community may only discover the danger posed by a closed society with no opposition when it is too late. In such cases, standard diplomatic tools are simply not up to the job. The greatest potential danger to the international community is posed by rulers whose power over their own people and territory is so absolute that no matter how brutal, aggressive, or irrational they become, no force within their own society can stop them. Their rule is absolute precisely because they have terrified, brainwashed, and isolated their populations and have either destroyed internal opposition or subdued it by "closing" their societies, restricting information as much as possible. Such leaders may simply seek to consolidate their power and to be left alone. But if they choose to menace other countries or support terrorist groups, it is far more difficult to find out what they are doing and take effective measures to stop them.

Just as the responsibility to protect cannot apply to all regimes that abuse their citizens' human rights, the duty to prevent cannot apply to all closed societies with WMD programs. To be practical, the duty has to be limited and applied to cases when it can produce beneficial results. It applies to Kim Jong Il's North Korea, but not to Hu Jintao's (or even Mao's) China. Existing nonproliferation tools, updated to close loopholes, would continue to apply to most countries, and the effectiveness of these rules would be reinforced by the perception of greater determination to deal firmly with the most serious cases.

THE USUAL SUSPECTS