Preemptive and preventive use of force, collective security, and human security.

• Author: Nanda, Ved P.

I.

Legal norms on the use of force remain imprecise. It is axiomatic that the international community is not yet ready to accept strict constraints on the use of force. After all, until recently, war was a legitimate instrument of national policy, and hence states routinely settled international disputes by military means. Devastation caused by the two world wars, however, resulted in a broad consensus on the need for legitimizing the use of force under certain circumstances and for a more precise formulation of the criteria by which to judge the validity of military action. Consequently, it was deemed necessary to establish institutions, norms, and procedures to accomplish these goals. The main instrument was the U.N. Charter, especially its articles 2(4), 2(7), 51, and Chapter VII, which embody the pertinent norms, and the structure and mandate of the U.N. Security Council under the Charter with its primary responsibility to maintain international peace and security. The collective security concept was the touchstone of the new emerging world order.

This edifice created after World War II by the founders of the United Nations was rudely shaken after the onslaught of the Cold War. However, after the collapse of the Soviet Union and the fall of the Berlin Wall, there was renewed hope that perhaps under the changed circumstances collective security could become a reality, and that meaningful and principled constraints on the use of force might become acceptable in state practice. The hope has not been realized, even though under U.N. authorization the first Gulf War brought together a coalition of forces to compel the aggressor state Iraq to retreat from Kuwait. In a similar vein, U.N. and regional bodies have used collective intervention, inter alia,--in Bosnia, Haiti, Kosovo, and Afghanistan, in furtherance of the twin Charter objectives--for the maintenance of international peace and security and protection of human rights. For in numerous intrastate conflicts massive violations of human rights have often occurred without effective U.N. action. Rwanda, Liberia, Sierra Leone, Ivory Coast, the Congo, and now Darfur, are prime examples. And in March 2003, in the absence of a Security Council resolution, a U.S.-led coalition invaded Iraq.

It was in the light of these events that U.N. Secretary-General Kofi Annan addressed the General Assembly on September 23, 2003, stating that the United Nations had come "to a fork in the road." (1) He said that some states are now challenging the established U.N. Charter system of collective security, under which states address threats to the peace "through containment and deterrence." Beyond this prescription and states' reliance on Article 51, which acknowledges the inherent fight of states to use force in individual and collective self-defense, there is the need for "the unique legitimacy provided by the United Nations when states [address] the issue of broader threats to international peace and security." (2) Their challenge, he said, was based on the argument that since they could face an "armed attack" with weapons of mass destruction without warning or from a clandestine group, they "have the right and obligation to use force pre-emptively, even on the territory of other States and even while weapons systems that might be used to attack them are still being developed," so that they need not wait until the Security Council has acted, thus reserving the right to act unilaterally or in ad hoc coalitions. (3)

The major challenge, of course, came from the United States. Prior to the U.S.-led invasion of Iraq, President George W. Bush had clearly stated the U.S. resolve to take preemptive and even preventive action, if necessary. In his June 2002 address at the U.S. Military Academy he stated what eventually came to be known as the "Bush doctrine." He said:

If we wait for threats to fully materialize, we will have waited too long.... In the world we have entered, the only path to safety is the path of action. And this nation will act.... And our security will require all Americans to be forwardlooking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives. (4) President Bush used the term "preemptive," but the essence of the address was that the United States would be ready to take preventive action, if necessary. This message, using both the terms "preemption" and "prevention," was explicitly delivered subsequently in the National Security Strategy of the United States of America, unveiled in September 2002. The pertinent statement is:

The United States has long maintained the option of prevention actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction--and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. (5) The Secretary-General appointed a high level panel, comprising a sixteen-member team of eminent people, to respond the formidable challenges to peace and security caused by first, the "hard" and "real" threats, such as terrorism and weapons of mass destruction; second, states' claim to use force preemptively and preventively; and third, the inability of the international community to take effective action even in the face of severe and persistent violations...