I commend my fellow bloggers (Victoria Holt and Ben Rhodes) for weighing in on American attitudes toward the United Nations, a conversation prompted by Brian Vogt’s analysis of remarks by UN Deputy Secretary General Mark Malloch Brown.

Picking up on this thread, I’d like to take the conversation in a slightly different direction, pertaining specifically to discussions of UN reform.

Last summer, I spent some time reviewing Secretary General Annan’s reform proposals as put forward in the report In Larger Freedom. There was bipartisan support for UN reform, as evidenced by Newt Gingrich making common cause with George Mitchell. The task force participants, Sen. Mitchell notes, included a veritable who’s who of American foreign policy think tanks: “the American Enterprise Institute, the Brookings Institution, the Center for Strategic and International Studies, the Council on Foreign Relations, the Heritage Foundation and the Hoover Institution.”

I did not share this apparent bipartisan enthusiasm for reform. I still don’t. I am particularly troubled by bipartisan attitudes pertaining to the preventive use of military force.

On the surface, reform of the UN makes sense. Institutions must change over time to address the changes in the world around them. We are truly in a different world. Consider that the UN has grown from 45 countries to 191.  And with the growth has come a certain complexity, reflected within the UN.

But while the five victors in World War II agreed that the primary threat to world peace in 1945 was great power conflict, and they constructed the United Nations to prevent that scenario above all others, there is far less unanimity, even among the P5 today, on the nature of the threat today.

It is these differences, over the nature of the threat, and on the best means for combatting this threat, that are at the crux of America’s estrangement from the institution that it helped to create. (Secretary General Annan stressed this point.)

Beyond different attitudes toward threat, however, measures to advance human rights under the guise of a nebulous responsibility to protect, particularly when such actions are not firmly rooted in strong international support as expressed through the UN Security Council, can also be detrimental to peace and global security. They might encourage some states to act outside of the international norms expressed in UN Charter, and encourage other states to seek new means for safeguarding their sovereignty and independence (namely, nuclear deterrence).

Indeed, I see this as the fundamental contradiction at the heart of the UN system. One does not have to go far to see it. The final summit document from September 2005 (can be found here) affirmed that all member States “refrain in their international relations from the threat or use of force in any manner inconsistent with the Charter of the United Nations.”

But a few pages later the document declared “we are prepared to take collective action, in a timely and decisive manner, through the Security Council,…on a case-by-case basis…should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

How has this played out in practice?

In September 2004, Kofi Annan characterized the Iraq war (and he stressed, the second Iraq war) as “illegal” because the U.S. invasion was not formally sanctioned by the UN Security Council.

But if that were the case, if all actions not formally sanctioned by the Security Council were illegal in the eyes of the Secretary General, then there wouldn’t be much of a debate. There either is a vote in favor, or there is not. An intervention is either legal or illegal. 
 
But it turns out to be not that simple, for in 1999 some members of the UN were concerned about events in Kosovo. Faced with a certain Russian veto in the Security Council, the United States and its NATO allies chose NOT to refer the matter to the UNSC. And the Secretary General has intimated that he believed the Kosovo intervention to have been justified.

We have, therefore, two relatively recent examples – Kosovo in 1999 and Iraq in 2003 – where certain members of the United Nations disagreed with other members, and the UN as a body was unable or unwilling to stop a coalition of member States from attacking another member State without the explicit authority of the UNSC. This would certainly seem to be a violation of, at least, Article 2 of the UN Charter – which stipulates, in part, that all Members will “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

The common understanding is that Article 2 is not sacrosanct. As Annan has said elsewhere: “state sovereignty is not a license for mass murder.”

So what are the rules governing the legitimate use of force? Under Article 51 of the UN Charter, member states are specifically granted the right and authority to defend themselves from threats. However, in the absence of an imminent threat, there is an understanding that member states should not engage in military action without formal UN Security Council sanction. And if they do so without such sanction, then they should not expect such actions to be seen as legitimate.

But is the Secretary General’s commitment to the UN Charter as strong as he might imply? Annan says that the Iraq intervention was illegal because the mission was not conducted under UN auspices with the specific approval of the Security Council. But neither was the Kosovo campaign, which he views as illegal but legitimate.

So what is the standard? For those who were opposed to the war in Iraq from the very beginning, but who are unwilling to renounce the right to use force to compel a government to treat its citizens in a humane way, how do they separate one military intervention from another? What are the criteria when there is no objective threat?

Again, to be clear, the criteria are obvious when there is a threat. But that is the easy standard. The second standard, governing the responsibility to protect human rights through the use of preventive military action, is much, much harder.

I would urge supporters of UN reform to choose. They can choose to reaffirm the principle of sovereignty, and to enshrine preemption and the right of self-defense as a core principle of UN membership. They can, alternatively, define and limit sovereignty by formalizing the principle of preventive war, including the doctrine of military intervention as part of the “responsibility to protect.”

If they choose the latter route, I would strongly urge that they make clear that this exception to the non-aggression principle will be taken ONLY when there is a clear consensus for such action, preferably as expressed by a formal U.N. Security Council resolution authorizing the use of force. Such a resolution can only move forward when none of the five permanent members of the UNSC choose to exercise their veto power.

The UN wishes to be an organization of rules, and it wishes to make the international system abide by these rules. The Secretary General cannot say, on the one hand, that force is legitimate only if it is approved by the Security Council – and then turn around and say, essentially, “well, this particular military intervention aimed at addressing a particular humanitarian crisis in a particular country, is legitimate, even though it was NOT approved at the UNSC.”

The UN summit last September failed to establish an agreed-upon set of criteria on the preventive use of force. And yet I suspect that the member states of the UN will be unwilling to renounce the legitimacy of militarily intervention in the internal domestic affairs of another country. Further, having failed to renounce such actions, the UN will have no choice but to defer to the wishes of those few who, already convinced of the legitimacy of their actions, also possess the capacity to make good on their intentions. For now, there is only one country that possesses such power on a global basis, but several countries, including all four other members of the UNSC, have the ability to do so on a regional basis.

This is not just an academic discussion. By failing to refine the conditions whereby states retain their sovereign rights, advocates of UN reform, and of circumventing the UNSC in certain circumstances, have inadvertently contributed to the proliferation of the very weapons that can enable even one of the smallest and most impoverished nations in the world to deter even the largest and most powerful nation. After all, Iraq did not have the nuclear weapons that might have deterred the United States; the other two members of the Axis of Evil have no wish to share Iraq’s fate. They are taking little comfort in the steady assurances of the UN Charter and in the various UN reform proposals.