According to the U.N. High-Level Panel on Threats, Challenges and Change, “The maintenance of world peace and security depends importantly on there be– ing a common global understanding, and acceptance, of when the application of force is both legal and legitimate.”
The provision of security imposes two requirements: Those not authorized to use force should renounce its use and threat in their social relations, while the authorized agents of any community with the monopoly on the legitimate use of violence must have the capacity and will to use force when required.
For it to be efficient, any international enforcement action must be legitimate — in conformity with international law and consistent with the U.N. Charter. For it to be effective, it must match action to resources and be based on a unity of purpose and action in the international community and avoid fracturing the existing consensus. For it to be equitable, it must reconcile or, at the very least, balance competing interests among the many constituencies that make up the international community and avoid favoring the interests and viewpoints of one over the others.
To achieve freedom from fear, citizens must be assured that national authorities with the legal monopoly on the means of violence will not unleash the agents and instruments of violence on the people. Likewise, states must be assured that the most powerful will aim to settle differences of opinion around the negotiating table and not at the point of tank turrets, helicopter gunships and missiles.
Behind the headlines on the deeply divisive Iraq war was the larger question of the changing nature of threats in the modern world, the inadequacy of existing norms and laws in addressing them, and thus the need for new “rules of the game.”
Intervention by the North Atlantic Treaty Organization in Kosovo in 1999 highlighted a triple-policy dilemma of complicity, paralysis and illegality. To respect sovereignty all the time is to risk being complicit in humanitarian tragedies sometimes. To argue that the U.N. Security Council must consent to international intervention for humanitarian purposes is to risk policy paralysis by handing over the agenda either to the passivity and apathy of the Council as a whole, or to the most obstructionist member of the Council, including any one of the five permanent members determined to use the veto clause.
To use force without U.N. authorization is to violate international law and undermine world order.
The growing risks of a separation between lawfulness and legitimacy in the use of force, both domestically and internationally, can be attenuated through awareness of the responsibility to protect. The use of force, both domestically and internationally, must be tamed and brought under the restraining discipline of the rule of law. We urgently need a new institutional framework that can marry prudent anticipatory self-defense against imminent threats to the centuries-old dream of a world where force is put to the service of law that protects the innocent without shielding criminals.
Significant gaps exist in the legal and institutional framework to combat today’s real threats. If international institutions cannot cope with them, states will do so themselves. If preemption is strategically necessary and morally justified (why should an American president wait for another mass murder, and be prohibited from taking prophylactic action?) but not legally permitted, then the existing framework of laws and rules — not the anticipatory military action — is defective.
Given the changing nature of armed conflict, the need for clarity, consistency and reliability in the use of armed force for civilian protection now lies at the heart of the U.N.’s credibility. Absent a new consensus and clarity, its performance will be measured against contradictory standards — exposing it to charges of ineffectiveness from some and irrelevance from others, increasing the probability of unauthorized interventions, and further eroding the Security Council’s primacy as the protector of peace and security.
The International Commission on Intervention and State Sovereignty published its landmark report “The Responsibility to Protect” (R2P) with exceptionally bad timing in December 2001. The world was preoccupied with the war on terror. But R2P has gained currency in the meantime. Its main conclusions find their way into the High-Level Panel’s report, including five criteria for legitimacy: seriousness of threat, proper purpose, last resort, proportional means and balance of consequences.
During ICISS worldwide consultations, I was struck by four facts:
A strong consensus that sovereignty is not an absolute barrier to international intervention when exercising the responsibility to protect.
An equally strong consensus that Security Council authorization for intervention is preferable to all other alternatives.
Insistence by very few that Council authorization is necessary in all cases.
Considerable concern to avoid discrediting the United Nations or undermining respect for an international order based on rules and law rather than on power and wealth.
Our ability to act beyond our borders, even in the most distant spots, have increased tremendously. This has produced a corresponding increase in demands and expectations “to do something.”
Consider an analogy: Rapid advances in medical technology have greatly expanded the range, accuracy and number of medical interventions. Enhanced capacity and tools create more choices that have to be made, often with accompanying philosophical, ethical, political and legal dilemmas (the Terri Schiavo case is but the latest tragic example.) The idea of simply standing by and letting nature take its course has become less and less acceptable to the point that, in many countries today, parents who refuse all available treatment for their children can be held criminally culpable for failure to exercise due diligence.
Similarly, in the calls for military intervention, the concept of the responsibility to protect removes the last remaining excuses for us to sit back and do nothing when confronted with atrocities. In the real world today, our choice is not between intervention and nonintervention, but between ad hoc and rules-based intervention — unilateral vs. multilateral.
The challenge is neither to deny the reality of intervention nor to denounce it, but to manage it for the better. Establishing agreed principles to guide the use of force will make it more difficult to appropriate the humanitarian label to self-serving interventions, while making the Security Council more responsive to the security needs of civilians.
In his March 21 report, U.N. Secretary General Kofi Annan urged the Council to adopt a resolution “setting out these principles and expressing its intention to be guided by them” when authorizing the use of force. This would “add transparency to its deliberations and make its decisions more likely to be respected, by both governments and world public opinion.”
All too often, such statements from the U.N. today arouse cynicism among commentators. But we should remember one important fact: 15 years is a very short time in the sweep of human history. The Security Council has just referred crimes in Darfur to the new International Criminal Court. In 1990, no leader would have had any cause to worry about international accountability for criminally brutalizing his own people. Today, no leader anywhere in the world can bank on impunity based on sovereignty. This is a profound change in an astonishingly short period of time.
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