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threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime.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

A jugular issue is how to monitor compliance with any pledges to freeze or reverse nuclear programs. The Iraq experience suggests that un inspections stopped being effective when Baghdad succeeded in dividing the Security Council and international support for them broke down. When UN Security Council Resolution 1441 revived the inspections, with the unanimous backing of the Security Council, Baghdad grudgingly cooperated with inspectors. Intrusive inspections endorsed by a united Security Council, backed up by the threat of force, may have worked better than they have been given credit for. Although it is easy to dismiss the effectiveness of inspections in closed societies, we need to review systematically the experience of international inspections for lessons learned. It may be that intense international pressure can make a system of rigorous inspections effective enough.

The Bush administration's announcement of a preemption doctrine set off alarm bells in the United States and abroad, chiefly because of the precedent it would set in terms of a unilateral determination that another state poses a sufficient threat to justify a preemptive strike. In truth, the use of force to preempt an imminent threat has always been part of international law, and it has been an option that the United States has held in quiet reserve and occasionally used. In cases in which terrorists appear poised to strike, preemption is clearly the preferred course of action.

Unfortunately, the preemptive use of force is often difficult to justify because clear evidence that a threat is imminent is rare. The U.S. strike on a pharmaceutical plant in Sudan in 1998 was intended as a preemptive strike against a facility suspected of producing chemical weapons, but evidence that activities there were illicit remains thin. Furthermore, preemption is usually impractical because suspected facilities are often difficult to spot or hit. States have taken precautions in recent years in response to the Israeli bombing of Iraq's Osiraq reactor in 1981 and to the NATO and U.S. bombing campaigns in the Balkans and the Middle East. Many facilities are buried in bunkers deep underground and dispersed over wide areas. They are especially difficult to locate in closed societies. This is not to suggest that the use of force should be discounted as ineffective but to highlight that the most effective action is preventive, because undoing a nuclear program is orders of magnitude more difficult than preventing one in the first place.

Nevertheless, as in the Iraq case, keeping force on the table is often a critical ingredient in making diplomacy work. It may be especially necessary for effective inspections and monitoring of WMD programs in closed societies. Force may be considered as part of an interdiction effort, may be targeted at specific dangerous facilities, or may be part of broader military action as a last resort.

The utility of force in dealing with the most serious proliferation dangers is not a controversial proposition. In a little-noticed statement last June, the EU announced a "strategy against proliferation," identifying "coercive measures, including as a last resort the use of force in accordance with the UN Charter" as one of its "key elements." Later that month, the G-8 group of leading industrialized countries, which includes Russia, approached the subject more gingerly but nonetheless agreed that WMD and the spread of international terrorism were "the preeminent threat to international security," and that force ("other measures in accordance with international law") may be needed to deal with them. And, as noted earlier, Kofi Annan himself called on the Security Council to develop criteria for the early authorization of coercive measures.

IN IT TOGETHER

The contentious issue is who decides when and how to use force. No one nation can or should shoulder alone the obligation to prevent a repressive regime from acquiring WMD. Although the Security Council, still reeling from the Iraq crisis last March, now seems more interested in papering over its differences than in tackling these questions, it remains the preferred enforcer of collective measures. The unmatched legitimacy that the un lends to Security Council actions makes it easier for member states to carry them out and harder for targeted governments to evade them by playing political games. On the other hand, rifts within the council allow states to pursue WMD to advance their programs, leaving individual nations to take matters into their own hands, which further erodes the stature and credibility of the United Nations.

Given the Security Council's propensity for paralysis, alternative means of enforcement must be considered. The second most legitimate enforcer is the regional organization that is most likely to be affected by the emerging threat. After that, the next best option would be another regional organization, such as NATO, with a less direct connection to the targeted state but with a sufficiently broad membership to permit serious deliberation over the exercise of a collective duty. It is only after these options are tried in good faith that unilateral action or coalitions of the willing should be considered.

In any event, the resort to force is subject to certain "precautionary principles." All nonmilitary alternatives that could achieve the same ends must be tried before force may be used, unless they can reasonably be said to be futile. Force must be exerted on the smallest scale, for the shortest time, and at the lowest intensity necessary to achieve its objective; the objective itself must be reasonably attainable when measured against the likelihood of making matters worse. Finally, force should be governed by fundamental principles of the laws of war: it must be a measure of last resort, used in proportion to the harm or the threat of the harm it targets, and with due care to spare civilians.