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001-022_buch_keo

001-022_buch_keo

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05/09/2014

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S
ince September11 fears of terrorism and
weapons of mass destruction have fueled

a vigorous worldwide debate about the preventive use of force. Preventive use of force may be de\ufb01ned as the initiation of military action in anticipation of harmful actions that are neither presently occurring nor imminent.1

This essay explores the permissibility of preventive war from a cosmopolitan norma- tive perspective, one that recognizes the basic human rights of all persons, not just citizens of a particular country or countries. We argue that within an appropriate rule- governed, institutional framework that is designed to help protect vulnerable coun- tries against unjusti\ufb01ed interventions with- out creating unacceptable risks of the costs of inaction, decisions to employ preventive force can be justi\ufb01ed.

In our proposal, states proposing preven- tive war would have to enter into a contract with a diverse body of states as a condition for authorization of their actions. Both propo- nents of action and those opposing it would be held accountable, after the fact, for the accuracy of their prior statements and the proportionality of their actions. This institu- tional arrangement is designed to improve the quality of decisions on the preventive use of force. It does so by insisting that these deci- sions take place under rules that create incen- tives for honest revelation of information and responsible conduct, and that they be made by agents that are comparatively morally reliable.

The key to ensuring the fairness of rules governing the preventive use of force is accountability. Our proposed scheme pro- motes accountability through a combination ofex ante and ex post mechanisms. Prior to taking preventive action, states will be required to enter into a contingent contract that imposes two requirements. First, they must make an evidence-based case for pre- ventive force to the UN Security Council. Sec- ond, they must agree in advance to submit themselves to an evaluation by an impartial body after the preventive action occurred.

1
The Preventive Use of Force: A
Cosmopolitan Institutional Proposal
Allen Buchanan and Robert O. Keohane*
*The authors are grateful to J. L. Holzgrefe for stimulat-

ing conversations that helped to generate this paper. We have bene\ufb01ted from comments on presentations of this paper from participants at colloquia held at the Woodrow Wilson School, Princeton University, February19,2003; the Faculty Colloquium, Sanford Institute of Public Pol- icy, Duke University, February24,2003; Duke Law School, March19,2003; the University of Sydney Law School, August22,2003; Columbia University Law School, Octo- ber28,2003; and the University of California Law School, November17,2003. We thank Michael Byers, Neta Craw- ford, Ruth Grant, Henry R. Nau, Joseph S. Nye Jr., and two anonymous reviewers for valuable written comments on an earlier draft. We are particularly grateful to the editors, Christian Barry and Joel Rosenthal, for their extensive and perceptive suggestions. We are grateful for research sup- port from the Triangle Institute for International Secu- rity\u2013Duke University project \u201cWielding American Power,\u201d funded by the Carnegie Corporation of New York and its International Peace and Security Program.

1The notion of an \u201cimminent\u201d attack is somewhat vague but

is usually understood to include not only situations in which missiles or warplanes have been launched but have not yet struck their targets, but also situations in which forces have been mobilized with apparently aggressive intent.

This body will be charged with determining whether the empirical claims that were employed to justify the preventive action were true. If the ex post evaluation undermines the intervening states\u2019 justi\ufb01cation for acting, the contract would provide for sanctions against them. If the ex post evaluation vindicates the recourse to preventive force, then the contract would impose sanctions on those members of the Council who opposed the proposed action. If preventive action were blocked by a majority vote of the Security Council or a veto by one of the permanent members, those seeking to engage in preventive action could then make their case in a different body\u2014a coalition of democratic states\u2014with its own institutionalized mechanisms for accounta- bility. Although our goal is to develop an insti- tutional framework for decisions concerning the use of preventive force, we believe that our general approach can also be used to develop a framework for making decisions concerning humanitarian military intervention to stop presently occurring massive violations of basic human rights. We focus more narrowly on preventive force for two reasons: the pre- ventive use of force involves special risks and is thus more dif\ufb01cult to justify; and the Bush administration\u2019s recent claims that the right of self-defense includes the permission to engage in the preventive use of force has made this of urgent practical importance.

FOUR VIEWS ON THE PREVENTIVE
USE OF FORCE

Four distinct positions in the current debate on preventive force have emerged: the Just War Blanket Prohibition; the Legal Status Quo; the National Interest; and the Expanded Right of Self-Defense. Clarifying these views and identifying their shortcom- ings helps to illuminate the distinctive fea- tures of our proposal.

The Just War Blanket Prohibition. The dom-

inant view in the just war tradition has been that preventive force is strictly forbidden. Force may sometimes be justi\ufb01ed in cases in which an attack has not already occurred but is imminent\u2014when, for example, an enemy is mobilizing his forces with clear aggressive intent or when missiles or warplanes have already been launched but yet not struck their targets\u2013\u2013but there is generally thought to be a

blanket prohibitionon preventive action.2
The Legal Status Quo.States\u2019 preventive

use of force is generally regarded as prohib- ited in contemporary international law unless they have received collective authori- zation by the UN Security Council. Article

2(4) of the UN Charter requires \u201call states\u201d

to refrain \u201cfrom the threat or use of force against the territorial integrity or political independence of any state,\u201d unless author- ized by the Security Council (Articles39,42,

48) or in self-defense against an armed

attack (Article5 1). According to the Legal Status Quo view, this highly constrained stance on preventive force ought to be main- tained. Preventive force should be used only with Security Council authorization.3

2
Allen Buchanan and Robert O. Keohane
2Michael Walzer,Just and Unjust Wars (New York: Basic
Books,1977).
3In the absence of authoritative judicial determination,

international law is subject to a variety of interpretations. Some might hold that under current international law preventive action can be legitimate because the Genocide Convention obligates states/parties to take action to pre- vent genocide. However, this claim is contestable because, according to Article103 of the UN Charter, the prohibition against preventive use of force trumps all other treaties, including the Genocide Convention. It might also be held, on the contrary, that preventive force is not permissible under international law even with Security Council authorization, except in order to respond to a \u201cthreat to international peace and security.\u201d For our purposes, it is not necessary to take a stand on these legal questions. We merely follow most authorities in treating the legal status quo as prohibiting preventive use of force without Security Council authorization, but permitting it if such authorization has been provided.

The National Interest. Realists hold that

states may do whatever their leaders deem necessary to serve the best interests of the state. According to this view, leaders of states may disregard universal moral principles when they con\ufb02ict with the national inter- est. More specifically, they may employ force, including preventively, if they deem it necessary for the pursuit of state interests.4

The Expanded Right of Self-Defense. The

Bush administration\u2019s \u201cNational Security Strategy\u201d articulates a fourth position. It expands the definition of self-defense to include preventive action: \u201cWhile the United States will constantly strive to enlist the sup- port of the international community,we will

not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our coun- try [emphasis added].\u201d5 The Bush adminis-

tration\u2019s \u201cNational Security Strategy\u201d asserts that states possess a right of self-defense that entitles them to take preventive action.

None of these four views provides an ade- quate model for governing the preventive use of force. Adherence to the Just War Blan- ket Prohibition is too risky, given the wide- spread capacity and occasional willingness of states and nonstate actors to deploy weapons of mass destruction covertly and suddenly against civilian populations. In addition, this view requires states to refrain from acting even when they could prevent massive human rights violations at little cost.6 The National Interest view is also unacceptable. Indeed, it repudiates all progress that has been made in constraining the international use of force. The problem is not simply that the national interest is such a malleable concept that its invocation is likely to provide a rationale for aggression and a recipe for destructive international instability, but that by reducing the grounds

for the preventive use of force to self- defense, this view conceives of the potential aims of preventive action too narrowly. It fails even to consider the possibility that there are circumstances in which the pre- ventive use of force would be justified to protect the rights of persons other than one\u2019s fellow citizens.

The Expanded Right of Self-Defense view must also be rejected. Allowing states to use force on the basis of their own estimate that they may be attacked in the future, without provision for checks on the reliability and sincerity of that judgment, would make the use of force too subject to abuse and error. Like the National Interest view, it also focuses only on the welfare of those within one\u2019s own state, thereby providing no basis for the pre- ventive use of force on behalf of others.

The Legal Status Quo view is quite attrac- tive when compared to the three views described above, since it allows preventive action, including its use to protect persons beyond one\u2019s borders, while also providing checks on the judgment of any particular state or group of states seeking to use it. But when compared to a fifth alternative\u2014the Cosmopolitan Institutional view\u2014the Legal Status Quo view appears far less com-

the preventive use of force
3
4For the classic statement, see Hans J. Morgenthau,Pol-
itics Among Nations: The Struggle for Power and Peace,
6th ed., revised by Kenneth W. Thompson (New York:

Knopf,1985), p.12. Advocates of the National Interest view need not be moral skeptics; instead they may hold that state leaders have one supreme moral obligation\u2014 to serve the national interest\u2014and that this obligation overrides all other principles of morality. Those who espouse the National Interest view may disagree among themselves, of course, as to whether a policy of recourse to preventive force, or any particular decision to use preventive force, is in fact likely to serve the national interest or be detrimental to it.

5\u201cNational Security Strategy of the United States
of America September2 0 02,\u201d p.6; available at www.
whitehouse.gov/nsc/nss.pdf.
6We explore the \ufb02aws of the Just War Blanket Prohibi-
tion in more detail below.

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