New Threats and the Use of Force

Today, the report NEW THREATS AND THE USE OF FORCE was delivered to the Minister for Foreign Affairs. The report was commissioned by the Danish Government from DIIS and is presented in accordance with DIIS’s regulations on the responsibility of the Board.
 
In its mandate the Government requested DIIS to extend the 1999 report on humanitarian intervention from the Danish Institute of International Affairs (DUPI) with a political and legal analysis of the possibilities for military intervention against the new threats to international peace and security arising from global terrorism and proliferation of weapons of mass destruction. The need for developing criteria for collective use of military intervention was particularly emphasized.
 
The requested analysis is based on a distinction between legality and legitimacy. Decisions to use military force are never made solely on the basis of legal considerations. Political and moral considerations are also involved in such decisions and they play a central role for their legitimacy. Current international law allows states to defend themselves against the new threats in case of an ongoing attack or an imminent attack (preemptive self-defence). But it does not include the right to use force against more distant threats (preventive self-defence). The preventive use of force must be authorised by the Security Council to be legal. This creates the same dilemma as with the humanitarian intervention during the Kosovo crisis in 1999: What can be done if the Security Council is unable to authorise the preventive use of force in a situation where many states inside as well as outside of the Council consider it justified? Like the DUPI report on humanitarian intervention, this report identifies four possible political-legal strategies that may be applied to overcome this dilemma.
 
Chapter 2 outlines the new threats and undertakes a political-strategic analysis to determine how often the need for the preventive use of force may be expected to arise in the future and how effective it is likely to be. The analysis concludes that the preventive use of force will seldom be effective against states that seek to acquire weapons of mass destruction and that the need for actionable intelligence impedes the use of force against terrorists. When the necessary intelligence can be obtained, the use of force makes perfect sense against apocalyptical terrorist organisations like Al Qaeda that are undeterrable and likely to employ weapons of mass destruction if given an opportunity to do so. The use of force against such groups is likely to increase, because they can be effective and because they enjoy broad support in the society of states. On the other hand, the problems and costs of using force preventively against states imply that this option is unlikely to be used very often and that the risk that states should feel compelled to use force preventively without a mandate from the Security Council is smaller than feared by many.
 
Chapter 3 undertakes a legal analysis of the right of self-defence under current international law with a special focus on the new threats. The conclusion is that the right of self-defence has been adjusted after 11 September 2001 in order to accommodate the threat from international terrorism. It has thus been confirmed that the right of self-defence not only covers the use of force against an ongoing attack (reactive self-defence), but also to prevent further likely (terrorist) attacks. It is further concluded that the right to self-defence probably also applies in case of an imminent attack (preemptive/anticipatory self-defence), whereas current international law does not recognize a right to self-defence against non-imminent threats (preventive use of force).
 
Chapter 4 undertakes a legal analysis of the Security Council’s mandate to authorise use of force beyond the right to self-defence. The conclusion is that the Security Council may authorise preventive use of force pursuant to Chapter VII of the UN Treaty. It is stated that the Security Council’s legitimacy would be strengthened if the Council adhere to the five general criteria for use of force that were proposed by the UN High-level Panel in its report from 2004:
 
1) Serious threat. There must be a serious threat prima facie justifying the use of force.
2) Proper purpose. The primary purpose of military force must be to avert the threat.
3) Last resort. There must be reasonable grounds for believing that non-military sanctions will not succeed in eliminating the threat.
4) Proportional means. The use of military force must include only the minimum necessary to avert the threat.
5) Balance of consequences. There must be a reasonable prospect that the military action will succeed and will not do more harm than good.
 
These criteria are inherently vague, even if they may be defined more precisely in the light of the Security Council’s previous practices on terrorism and weapons of mass destruction. The Security Council’s decision procedures constitute on the other hand a strong guarantee against abuse of the preventive use of force. At the same time, the Security Council procedures, and in particular the right of veto, also create an inevitable risk that the Security Council in a concrete case may not be able to reach an agreement even if there is a broad international consensus that the criteria are met.
 
Accordingly, Chapter 5 examines whether preventive use of force without Security Council authorisation can be justified. The conclusion is that unauthorised preventive use of force is without legal foundation in current international law. It is stated that the threats to the international legal order from unauthorised military action are evident, but that it is possible to imagine exceptional situations where such use nevertheless may said to be justified on political and moral grounds. Eight criteria that may be used to legitimise unauthorised preventive use of force are listed. They are, besides the abovementioned five criteria:
 
6) The Security Council is blocked. The Security Council must have failed to authorise the use of force due to a great power veto (actual or anticipated).
7) An alternative forum of legitimacy is preferable. A declaration of support should be sought from the General Assembly; if this is not feasible, endorsement or support should be sought from a (sub-)regional organisation or organ.
8) Multilateral action is preferable. In any event, action should be conducted by the broadest possible coalition of states to avoid allegations of abuse.
 
The assessment is, however, that it will be very difficult in practice to legitimise unauthorised military action against the new threats on basis of these eight criteria, not least because the five central criteria are inherently vague. The risks of disagreement and abuse are therefore evident in absence of a formal decision-making procedure.
 
The best way to avoid ending up in a situation where unauthorised preventive action has to be considered is to ensure that it does not arise in the first place. Therefore, the report recommends that the Security Council do this by acting earlier and more decisively in the relevant cases (Status Quo + Strategy).
 
Since the possibility that the Council may still fail to act against the new threats cannot be ruled out, consideration may be given to coupling this strategy with a distant readiness to carry out unauthorised preventive operations that are justified on moral and political grounds only, in the highly exceptional situations in which there is general international agreement that all the criteria of preventive action have been fulfilled (Ad Hoc Strategy).
 
When justifying unauthorised preventive action on political and moral grounds only, one recognises that the action is in violation of international law and that it should remain so. However, if, exceptionally, the specific political and moral justification finds favour in the international community, this might be regarded as constituting extenuating circumstances which mitigate the wrongfulness of the formal breach of the law.
 
Pursuing a strategy of legalising unauthorised preventive action under international law (General or Subsidiary Right strategies) is not to be recommended, because it would have potentially devastating consequences for the international legal order.
 
Chapter 6 summarises the conclusions of the report and takes a look at the future perspectives for both humanitarian intervention and the preventive use of force.