Legitimate Use of Force and the National Interest: Continuing the Discussion

I want first to qualify my statement in the last post that probably a majority of contemporary scholars and governments still cling to the position that the only legitimate uses of force are defense against armed attack and enforcement action authorized by the Security Council. In fact, particularly among European and American legal scholars and NATO governments there has grown a conviction that force may or at least should be used as a last resort to prevent or terminate crimes against humanity even without Security Council Sanction; these scholars (among whom I number myself) and governments have, in other words, endorsed Humanitarian Intervention (HI). This position could be seen as a corollary of the claim, first officially articulated, I believe, by Lloyd Axworthy when he dominated Canadian foreign policy, that states have a responsibility to protect (RTP) their nationals and that the failure to exercise that responsibility gives other states a license to act as the delinquent state’s proxy for that purpose. (I recognize that the assertion of a right to intervene for humanitarian purposes preceded in time authoritative articulation of RTP.) While not explicitly endorsing Humanitarian Intervention, by endorsing the idea of RTP, Kofi Annan while serving as UN Secretary-General certainly hinted at its legitimacy. The International Commission on Kosovo set up by the Government of Sweden expressed my own views when it drew the distinction between “legitimacy” and “legality” under the Charter. Legitimacy obtains, I believe it was saying in the case of non-UN-sanctioned military operations like NATO’s in the Kosovo case, when the use of force satisfies Just War criteria.

Roger Alford’s thoughtful comment provides a nice segue to the issue for which I tried to lay a foundation in my second post, namely whether or in what circumstances a state can legally take preventive military action unsanctioned by the Security Council against non-state terrorists residing in another country. By “legally” I mean within the UN Charter paradigm. Roger writes that I am “equivocal” about the case where the potential target state is either unwilling or unable to act at the request of the state at risk from the terrorists. Perhaps it would be more precise to say that I am “uneasy and unclear.” Uneasiness is native to the issue and will therefore endure. The lack of clarity is susceptible to immediate correction.

To a degree Roger himself suggested the source of my unease. As Ken notes, we are dealing with networks of alienated groups, some of them microscopic, and even individuals. Some are already committed to violent action; others are not themselves committed to violence but are willing to enable those who are; still others may simply be contemplating active cooperation with committed terrorists; and still others may be at the stage of deep alienation but without specific plans or active involvement. David Kilcullen, the former counter-terrorist advisor to General Petraeus, calls it the “ladder of extremism.” What unites everyone on it is the Jihadi narrative in which the West, led by the US and assisted by Islamic traitors, is waging war against the Muslim world for the purpose of extracting its resources and keeping it weak. What distinguishes them, aside from their respective positions on the ladder, are local conditions that, together with the narrative, feed their alienation.

A doctrine authorizing unilateral action may be aimed initially only at groups on the top of the ladder and might purport to limit attacks on them to cases where it is clear either that they are preparing a specific attack or series of attacks or that they have already engaged in terrorist actions (and thus have demonstrated their dangerousness and may be presumed to be preparing additional attacks, as in the case of Al Qaeda). And the doctrine may further condition recourse to force on the unwillingness or inability of the host state to move against the terrorists or to authorize action by the government that regards itself as the terrorist’s target. But just as the Israeli experience suggests that a license for brutal interrogation nominally limited to the “ticking bomb” case will metastasize, so in practice, I suspect, will be a nominally very limited doctrine of unilateral armed prevention. The operative presumption is likely to become: “When in doubt about the quality of our intelligence or the place of suspected terrorists on the ladder of extremism or the willingness or ability of the haven state to act as our proxy, it is better to err on the side of prevention.” The result, I fear, would be a further global erosion of normative restraint on the use of force. As the Russians recently demonstrated, other countries will certainly claim the same privileges as the US and, relying on strained analogies, possibly a good many more. So there are ample grounds for “unease.”

Does my unease lead to the conclusion that unilateral action should be ruled out either as a matter of law or long-term national interest in limiting the use of force as an instrument of statecraft? First the legal question. And the answer is: “It depends.” I distinguish in my book the case of Afghanistan where a state knowingly provides a base for a terrorist organization that is engaged in a series of attacks on Americans. Since each attack can be fairly seen as analogous to a “battle” in an ongoing war and attacks may be renewed at any time, and since the haven state has demonstrated its unwillingness to halt the attacks, I conclude that a forceful U.S. response falls within the Charter paradigm as self-defense under Article 51 of the Charter, if reported to the Security Council as Article 51 requires. Given conditions in Somalia, assuming US operations there have be directed against Al Qaeda members, it too would fall within the Charter, if the U.S. reported it actions to the Council.

The more difficult case is the allegedly terrorist group that has not previously attacked U.S. targets but is believed to have secured WMD and the US has intelligence that the group is planning its first attack, intelligence so sensitive it is reasonably unwilling to share it with Security Council members. My inclination would be to treat this as too exceptional a case to turn into a formal exception to the Charter rules, to treat it by analogy to euthanasia in domestic law.