Toward a Better Defense: Preventive Force and International Security
Few issues could be more contentious than the question of how the United States should “deal,” in the broadest sense of that word, with terrorism. If the U.S. takes a purely ad hoc approach to squashing terrorist cells, it is likely that untold numbers of American citizens will expire at the hands of these committed extremists. On the other hand, if the U.S. opts to take a preventative approach, obliterating suspected terrorists before they actually act against its citizens or interests, many believe international law will ineluctably be breached. The puzzle, then, is this: Complete security comes at the cost of breaching international law, yet complying fully with international law will require the unnecessary loss of human lives.
Abraham Sofaer, the George P. Shultz Fellow in Foreign Policy and National Security Affairs at Stanford’s Hoover Institution, argues in The Best Defense (Foreign Affairs, January/February 2010) that the key to unraveling this puzzle is approaching it from a fresh vantage point. According to Sofaer, modern terrorism poses a stiff challenge to the existing architecture of international law. Because existing rules only permit states to take military action against “armed attacks” – that is, attacks from state actors – countries besieged by terrorists feel as though their hands are tied. Since terrorists are often not aligned with particular states, taking military action against them, especially without the approval of the United Nations, would appear to violate the UN Charter. Lives or the law, what is to take priority?
On Sofaer’s view, this strict interpretation of the Charter is deeply problematic because preventative actions are sometimes necessary from the perspective of the state facing a credible threat of terrorism in the future. And, what’s more, states have been acting on this central, unwritten truth for quite some time. Hostage rescue operations, targeted killings, direct targeted attacks on terrorists and their infrastructure, and preventative cyber attacks are all examples of actions that states have taken to protect their real (and perceived) security interests. Of course, this does not mean that all such measures were technically legal or accepted as reasonable by members of the UN. But since some of these actions elicited support – whether explicitly or tacitly – from the international community, there is a sense in which some forms of preventative action are already recognized as legitimate responses to certain kinds of serious threats and violations of international peace and security. Legitimacy, then, should be the measure of preventive action; legality alone does not serve us well. In Sofaer’s own words:
“Unlike traditional legal arguments, which purport to rely on established rules to vindicate or condemn state behavior, arguments based on legitimacy claim on to guide complicated decision-making by subjecting that process to a survey of the full range of relevant international opinion.”
The basic idea seems promising. In those cases where preventive action is necessary to protect a state’s interests, that state’s government must consider whether preventive action will be accepted by the world community. This, in turn, requires a state to carefully evaluate its own reasons for taking preventive steps. If it turns out that its conduct is defensible (after considering all of the relevant factors), then it may go ahead and attempt to prevent the feared future conduct. Sofaer even suggests that the United Nations should consider adopting (1) a reporting protocol to encourage states to report their preventive action to the Security Council to “justify [their] conduct” after the fact and (2) a scheme to compensate innocent victims for botched military actions undertaken for preventive purposes.
There is one glaring omission: Sofaer’s proposal does not directly address what happens when a state acts on the basis of a credible future terrorist threat but then adopts preventive measures that (i) are clearly ill suited to the task or (ii) provide a pretext for advancing otherwise illegal economic or political projects in foreign lands. There is always a distinction, as the old saw goes, between ends and means. How Sofaer missed this problem is beyond the ken of this author, as much of the world regards the U.S. invasion of Iraq as a war prosecuted on the basis of patent falsehoods deliberately designed to “fool” Americans and the rest of the world. What could be a clearer example of pretextual prevention? And so, before we begin reconceiving the UN Charter and the legal framework we use for evaluating preventive action, we ought to first think about what really needs to be done (assuming it is possible) to ensure that countries with fulsome military resources and a capacity to abuse their power – countries like the United States – find no refuge in a new (and admittedly promising) approach to evaluating and justifying preventive action.
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There is a conflict management theory, “preventive diplomacy” which resembles what I believe Sofaer is trying to say. Preventive diplomacy puts mechanisms into place and deploys forces or attempts to influence the government(s) of nations whose countries may be at risk. This can be anything from sanctions, laws, referendums, and peacekeeping forces. Two situaitons come to mind: Estonia v. Russia and language laws after the collapse of the Soviet Union; and Macedonia’s perceived and fear of a Serbian minority endangering its sovereignty. In reply to your criticism of Sofaer, the actions taken by both the Estonian and Macedonian governments was well received and all the parties in both cases were satisfied. Legislation and compromise was used to settle the problem in Estonia and UN Peacekeeping forces were stationed in Macedonia. Both of these issues have remained static. There are diplomatic strains between Estonia and Russia but are not relevant to the Language and Representation issue. Macedonia has become the model for preventive diplomacy. UN involvement was set by precedent because there was a legitimate threat in Macedonia.
I suggest reading Alice Ackerman’s book on Preventive diplomacy.
Comment on February 17, 2010 @ 2:59 pm
Thanks Samantha for the book tip. I’ll have a look at Ackerman’s work when I dig myself out!
Comment on March 13, 2010 @ 10:39 am