Article 51 of the UN Charter refers to an “inherent right of individual or collective self‐defense if an armed attack occurs.” Most observers agree that this provision includes “anticipatory self‐defense” — in other words, the right to act in the face of an imminent threat. But in the absence of an imminent threat, force cannot be used without the explicit sanction of the UN Security Council. Presumably, this is what Kofi Annan meant when he said in September 2004 that the most recent Iraq war was illegal.
But Annan, like many American liberals, suffers from the selective application of principle. By the Annan standard, NATO operations in Kosovo in 1999 were clearly illegal. Faced with a certain Russian veto, the United States and its NATO allies chose to ignore the Security Council. Notwithstanding the “illegality” of such action, France, Germany, and a host of other countries decided to intervene.
A similar predicament could emerge soon over the catastrophe in Sudan’s Darfur region. China would almost certainly block a Security Council resolution mandating military intervention — if so, any Darfur intervention would also fail to meet the Annan standard for legality.
John Bolton opposed the Kosovo intervention, on the grounds that there was not “a sufficient American interest to take the side either of the Kosovar Albanians or of the Serbs.” Liberals might remember that, in 1999 at least, Bolton was on the “legal” side, and they were, by and large, waging an illegal war.
The turnabout reflects more than simple politics. It is rooted in the tension between Article 2 of the Charter, which calls on all members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” and the growing sense that the international community has a “responsibility to protect” people who live under brutal tyrants, or whose security is threatened by domestic strife. This very different perspective on the legitimacy of the use of force is the fundamental problem at the heart of the United Nations in the twenty first century.
Those who wish to reform the United Nations — be they conservatives like Bolton or liberals who idolize Richard Holbrooke or Madeleine Albright — must choose. They can either reaffirm state sovereignty and the right of self‐defense as the core principles of UN membership, or they can work to establish the legitimacy of military intervention as part of the “responsibility to protect.”
If they choose the latter, one way to limit the number of military interventions would be to make clear that exceptions to the nonaggression principle of Article 2 would occur only when there is a clear consensus for such action as expressed by a formal UN Security Council resolution authorizing the use of force. This is a high bar, to be sure, but it is not unprecedented: The Security Council specifically approved military action in 1990 to drive Saddam Hussein out of Kuwait.
For now, few people seem willing to renounce the legitimacy of military intervention in the internal affairs of another country. Absent such a reckoning, questions of illegality or illegitimacy will forever be determined by a highly subjective standard, one completely divorced from the practical concept of threats as outlined in Article 51.
Gen. Brent Scowcroft, national security advisor to the first President Bush, and a member of a high‐level panel appointed by the secretary general to study UN reform, explained: “In the end…if one of the permanent members of the Security Council or a major state considers something to be in its vital interest, the UN is not going to be able to do anything about it.” That, he went on to say, “is [the] imperfect nature of the body that we have.”
If states will initiate wars regardless of what the Security Council does or doesn’t say, then the United Nations cannot possibly live up to its original goal of saving “succeeding generations from the scourge of war.” Which means that all the hubbub over Bolton, and talk of the importance of the United Nations itself, is rather beside the point.