Professional Documents
Culture Documents
ince September 11 fears of terrorism and The key to ensuring the fairness of rules
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This body will be charged with determining The Just War Blanket Prohibition. The dom-
whether the empirical claims that were inant view in the just war tradition has been
employed to justify the preventive action were that preventive force is strictly forbidden.
true. If the ex post evaluation undermines the Force may sometimes be justified in cases in
intervening states’ justification for acting, the which an attack has not already occurred but
contract would provide for sanctions against is imminent—when, for example, an enemy is
them. If the ex post evaluation vindicates the mobilizing his forces with clear aggressive
recourse to preventive force, then the contract intent or when missiles or warplanes have
would impose sanctions on those members of already been launched but yet not struck their
the Council who opposed the proposed targets––but there is generally thought to be a
action. If preventive action were blocked by a blanket prohibition on preventive action.2
majority vote of the Security Council or a veto The Legal Status Quo. States’ preventive
by one of the permanent members, those use of force is generally regarded as prohib-
seeking to engage in preventive action could ited in contemporary international law
then make their case in a different body—a unless they have received collective authori-
coalition of democratic states—with its own zation by the UN Security Council. Article
institutionalized mechanisms for accounta- 2(4) of the UN Charter requires “all states”
bility.Although our goal is to develop an insti- to refrain “from the threat or use of force
tutional framework for decisions concerning against the territorial integrity or political
the use of preventive force, we believe that our independence of any state,” unless author-
general approach can also be used to develop ized by the Security Council (Articles 39, 42,
a framework for making decisions concerning 48) or in self-defense against an armed
humanitarian military intervention to stop attack (Article 51). According to the Legal
presently occurring massive violations of Status Quo view, this highly constrained
basic human rights. We focus more narrowly stance on preventive force ought to be main-
on preventive force for two reasons: the pre- tained. Preventive force should be used only
ventive use of force involves special risks and with Security Council authorization.3
is thus more difficult to justify; and the Bush
administration’s recent claims that the right of 2
Michael Walzer, Just and Unjust Wars (New York: Basic
self-defense includes the permission to engage Books, 1977).
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in the preventive use of force has made this of In the absence of authoritative judicial determination,
urgent practical importance. 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
FOUR VIEWS ON THE PREVENTIVE Convention obligates states/parties to take action to pre-
USE OF FORCE vent genocide. However, this claim is contestable
because, according to Article 103 of the UN Charter, the
prohibition against preventive use of force trumps all
Four distinct positions in the current debate other treaties, including the Genocide Convention. It
on preventive force have emerged: the Just might also be held, on the contrary, that preventive force
is not permissible under international law even with
War Blanket Prohibition; the Legal Status
Security Council authorization, except in order to
Quo; the National Interest; and the respond to a “threat to international peace and security.”
Expanded Right of Self-Defense. Clarifying For our purposes, it is not necessary to take a stand on
these views and identifying their shortcom- these legal questions. We merely follow most authorities
in treating the legal status quo as prohibiting preventive
ings helps to illuminate the distinctive fea- use of force without Security Council authorization, but
tures of our proposal. permitting it if such authorization has been provided.