Force Rules: UN Reform and Intervention

As the United Nations turns sixty, it suffers from a crisis of ineffectiveness and corruption. It failed to produce a consensus on whether the Great Powers should have used force to enforce United Nations Security Council resolutions regarding Iraq. It then failed to prevent the United States and a coalition of nations from invading Iraq without the permission of the Security Council.1 It has reeled from corruption confirmed by the Volcker Commission's investigation of UN administration of the Iraqi Oil-for-Food program.2 As secretary-General Kofi Annan has acknowledged, UN peacekeepers in the Congo and other African countries have engaged in the sexual abuse of children.3 Recalling its failures in Bosnia and Rwanda, the United Nations has stood by while almost four hundred thousand have died in Darfur, Sudan, with the potential for hundreds of thousands more in the near future at the hands of government-backed militias.4 Secretary-General Kofi Annan has responded by proposing reform of the rules governing the use of force and changes in the structure of the Security Council. Presented in a new report, In Larger Freedom: Towards Development, Security and Human Rights for All, Annan acknowledges that nations may use force more broadly to confront the problems created by terrorism, rogue nations, and human rights catastrophes, but demands that the Security Council still retain its monopoly on the authorization of the use of force beyond that required for selfdefense.3 He proposes the enlargement of the Security Council to increase the presence of geographic regions not currently well represented and to recognize a shift in global power away from the countries of "Old Europe" and to nations such as Japan, India, and Brazil.6 To address the new threats of terrorism and rogue states, Annan also recommends that nations agree on a definition of terrorism, which will henceforth be prohibited,7 and asks for an expansion in the UN's peacekeeping operations by creating a "strategic reserve" of national forces that can be deployed rapidly, but only on the call of the United Nations.8 In making these suggestions, the secretary-General primarily adopted the December 2004 recommendations of a "High-Level Panel on Threats, Challenges, and Change" appointed by him.9 At first glance, these reforms suggest a significant change in the way that the United Nations views the use of force. These differences, however, are rhetorical in nature. Indeed, they do not represent any change in the legitimacy of the current use of force by nations, nor would they have the effect of moving legal rules in the best direction to address the world's current problems. In fact, the Secretary-General's proposals would likely have the opposite effect-they will inhibit the use of force when it would promote the goals of international peace and security. The choice for the United States is whether it has sufficient control in the United Nations to spark new reforms in promoting international peace and security, whether it ought to seek alternate rules to govern the use of force, or whether it simply ought to ignore the UN and create a separate security framework-as it did successfully during the Cold War. This Article has three parts. Part I will discuss the existing legal framework established by the UN Charter governing the use of force. It questions whether this structure has succeeded in regulating state practice, and describes both the proposed reforms and the new international environment that prompted them. Part II criticizes the reforms' response to the rise of rogue nations and international terrorism by emphasizing the legal doctrine of imminence and a recentralization of power in the UN Security Council. It argues that the concept of imminence does not make sense, and should be replaced by a cost-benefit analysis of expected harm. Part III addresses whether the reforms successfully grapple with contemporary international problems from the perspective of global welfare analysis. …