The Fletcher School

December 13, 2004
Reprinted from Financial Times
By Michael Glennon

Many commentators believe that the recent report of the United Nations' High-Level Panel on Threats, Challenges and Changes is about global security. Would that it were. In fact, the report is mainly concerned with strengthening the UN Security Council. The two are not the same, and therein lies the report's chief flaw.

The panel's central conclusion is that, without Security Council approval, no state should use force to defend itself against a threat that is not imminent. The gravity of the threat and the probability of its occurrence are irrelevant. Even if the state knows that some other state or terrorist group is planning a nuclear strike against it, its only recourse is to seek permission from the Security Council to use defensive force. If the Council dallies, too bad: the target state must ask again.

The same applies when genocide occurs. "Genocide anywhere is a threat to the security of all," the panel declares, "and should never be tolerated." But it turns out that sometimes, the panel believes, genocide should in fact be tolerated. Armed force cannot be used to stop genocide, it asserts, unless the Security Council permits it. France's invasion of the Central African Republic to end the murderous regime of Jean-Bédel Bokassa, Vietnam's invasion of Cambodia to oust the Khmer Rouge, Tanzania's invasion of Uganda that put a halt to Idi Amin's bloodbath, Nato's 1998 air campaign against Yugoslavia to stop ethnic cleansing in Kosovo - all would have been forbidden under the panel's interpretation of the Charter.

Why give members of the Security Council this extraordinary power? Because, the panel asserts, the "risk to global order" of permitting unilateral action is too great, and because the Security Council will have a new-found commitment to humanitarianism if it adopts as "guidelines" the principles of the just war doctrine. In considering any request to use armed force, the panel suggests, the Council should assess the seriousness of the threat, whether it is clear that the primary purpose of the proposed action is to halt or avert the threat in question, whether force would be a last resort, whether the amount used would be proportional and whether there exists a reasonable chance of success.

Set aside whether natural law precepts formulated in the 5th century by Augustine and revised in the 13th century by Thomas Aquinas are the best rules that humanity can come up with to deal with 21st century problems of rogue states, terrorism and weapons of mass destruction.

The panel allows that "anyone" who is involved in a decision on whether to use force - individual states as well as the Security Council - should be guided by the just war criteria. The obvious question therefore arises: why should a state not be free to act in the absence of an imminent threat and without Security Council approval if its use of force would nevertheless be just? Why should states be expected to adhere to rules that are unjust as judged by principles that the panel itself endorses?

The reason the panel's remedies are contradictory is that it misdiagnoses the disease - or fails to diagnose it at all. Cheap talk notwithstanding, states do not regard intra-state genocide as "a threat to all". If they did, Kosovo, Rwanda and Darfur would not be the tragic embarrassments to the UN that they have been. African, Asian and South American states have long rejected the idea of "humanitarian intervention" because they see it as a pretext for invidious intrusion.

The central problem is that the "global order" posited by the panel is largely non-existent. Notions of justice vary from one culture to another. The panel alludes to one estimate that counts 690 "overt military interventions" from 1945 to 1989, but never asks why such violations might have occurred. Indeed, it makes no effort to assess the effectiveness of the Charter's rules, whether the benefits of saving them are worth the costs, whether they still command international support, or whether alternatives such as strengthened regional peacekeeping organisations might work better.

A little empirical spadework, coupled with a little disinterestedness, would have gone a long way in lighting the way to a more peaceful and just world. That is the issue - not how the Security Council can get a bigger piece of the action.

Michael Glennon is professor of international law at the Fletcher School at Tufts University and the author of Limits of Law, Prerogatives of Power: Interventionism After Kosovo