Prepared for the CEPS/IISS European Security Forum, Brussels, 13 January 2003

Preemptive military action and the legitimate use of force: A Russian View

by Prof. Alexander I. Nikitin, Director, Center for Political and International Studies

The approach of the Russian political establishment towards legitimate use of military force has significantly changed during the last decade after the creation of the new independent states on the ruins of the Soviet Union. In Soviet times, while supporting international law and United Nations rhetorically, communist rulers considered ideological justifications of use of "revolutionary" or "socialist" force as a legitimate excuse for violating some principles of international law.

A new Russia, obviously a weaker power than the former Soviet Union, tends much more to stress and to use (diplomatically) norms of international law and procedures of democratic decision-making in the international community. What Moscow formerly obtained through bilateral "balance of power" talks with Washington, it tries now to reach in many cases through using the legitimizing/de-legitimizing mechanism of UN Security Council resolutions, the right of "veto", and the requirement of strict observance of international legal procedures. This overplay of the "legitimacy" issue could be seen in Moscow's stand regarding the 1999 bombings of Belgrade by NATO in absence of a UN mandate and in current debates around the use of force against Iraq.

The Russian National Security Concept (in current form reformulated and adopted in 2000) names as one of the major sources of external threats to Russian national security "attempts of certain states and inter-state alliances to diminish the role of existing mechanisms of international security, first of all of the United Nations and OSCE". By "diminishing" the role of international mechanisms, the doctrine means attempts to make crucial forceful actions by own decisions of the USA or NATO, circumventing or ignoring the absence of consensus in international organizations.

More than that: the official National Security Concept (formulated soon after the 1999 crisis in Russian-Western relations caused by the use of force against Yugoslavia) openly proclaims as a threat to Russian security in military sphere "NATO's practice of use of (military) force outside the zone of responsibility of the alliance and without sanction of the United Nations Security Council". Formally that means that any use of force on behalf of the international community or its part in cases of absence of consensus at the UN SC will be automatically considered by Russia as a military threat.

At the same time, while notion of "preemptive military actions" is absent in both National Security concept and Military doctrine of the Russian Federation, it could be found in both documents "between the lines". The National Security Concept, for example, allows "realization of operational and long-term measures aimed at prevention and neutralization (emphasized by author-A.N.) of internal and external threats" and in other context speaks of the necessity for the Russian Federation in the name of national security interests "to react to crisis situation in as early as possible stage". Criticism of "out-of-area operations" is somewhat balanced by justification of "necessity of military presence of Russia in some strategically important regions of the world", including deployment of "limited military contingents (military bases, Naval forces)..."

It is worth to mention that far before the September 11th events and the crises over Iraqi and North Korean WMD capabilities, the Russian National Security Concept proclaimed "commonality of interests of Russia and other states...on undertaking counter-actions against proliferation of weapons of mass destruction...and fight against international terrorism..."

During the past decade, Russia started four military operations abroad of involvement into regional and local conflicts in absence of UN Security Council mandates: namely, operations of Russian military interference in South Ossetia/Georgia and in Transdnestria/Moldova (both in 1992) were started on the legal basis of bilateral inter-state agreements with presidents of Georgia and Moldova, and operations in Abkhazia/Georgia (started in 1994) and in Tajikistan (1992-2000) were undertaken on the basis of mandates by CIS (Commonwealth of Independent States), but not UN. In all four cases there was sometimes silent, sometimes formalized "blessing" from the UN (and later even small groups of UN or OSCE observers were stationed in areas of mentioned conflicts to "supervise" Russian operations).

Formally Moscow insisted that in all four cases operations were undertaken with the consent of the legitimate government of the state on whose territory a conflict occurred, and thus, the use of force went under Chapter VI (so called "soft peace-keeping") or Chapter VIII (use of force by regional organizations) of the UN Charter, and not under Chapter VII, which would require a UN SC resolution as a "must".

Legally this "juggling" of UN Charter chapters is really important, because, indeed, if use of military force is undertaken by the international community against the will of the legitimate rulers of a state in conflict, then it necessarily requires the consent of UN Security Council and a formal UN mandate for the use and limits of use of force. Moscow stresses that this has been and remains a principal difference between the use of force by Russia in Georgia, Tajikistan and Moldova on the one hand (where request for foreign involvement from state side of local conflict was present), and, on the other hand, use of force by the Western community against Milosevic, the Taliban or Hussein, where obviously state leaders of conflict areas opposed international involvement, and thus such involvement has become a subject to strict coordination through the UN Security Council.

Russia is not at all "foreign" to the concept and practice of use of national or international military force outside its own borders. In recent years an average of 10,000 to 12,000 Russian military have been stationed and acting outside Russia. Figures varied in different years, but there were rotating contingents of about 1,500 Russian peace-keepers in Bosnia and about same quantity later in Kosovo; in Tajikistan above 7,000 officers and soldiers of the Russian MOD plus up to 10,000 Russian border-guards on Tajik-Afghan and Tajik-Chinese borders, about 1,700 Russian peace-keepers under CIS mandate in Abkhazia, and between 500 and 1,000 Russian military in South Ossetia and Transdnestria.

While military presence in Georgia and Moldova squeezes after 1999-2000, the geography of military presence expands: in 2002 part of Russian contingents were relocated from Georgia to Armenia, and creation of Central Asian Rapid Deployment Forces (under Organization of Collective Security Treaty uniting six countries) expanded presence and military exercises of Russian military from Tajikistan to neighboring Kirgizstan.

It is worth to remind that Russia was opposing the use of military force by NATO against Yugoslavia only during those period of 11 weeks when UN SC mandate was absent. After such mandate was finally coordinated and adopted, the Russian military hurried "to jump" into already going NATO-led operation which has become a UN action (Russian troopers headed by Gen. Zavarzin rushed at night to capture airport of Pristina and thus to obtain a role and sector of responsibility within operation).

Already in Bosnia from 1996 and later in Kosovo from summer of 1999 the level of cooperation and inter-operability between Russian and Western (mostly NATO) peace-keepers was positive and high. Russia not only supported the practice of creating ad-hoc military coalitions for dealing with international crises, but tried to practically participate at most of them (one of recent manifestations of that tendency was sending a symbolic contingent of Russian military to support international operation in Sierra-Leone).

The most significant practical role in international military campaigns of today, Russia played in 2001-2002 in the course of operation against the Taliban regime by providing serious military support (armaments, instructors) to the Northern Alliance of Afghanistan and by cooperating with the US military (reconnaissance data, air-corridors, etc.) in the framework of the anti-terrorist coalition. But it should be clearly understood that the short "brotherhood in arms" between Russia and USA regarding overthrowing the Taliban was rather tactical than strategic. It was not (or at least not only) caused and cemented by commonality of values and principles of international interference, but rather by a coincidence of geostrategic pragmatic interests of two powers regarding the rogue regime in Afghanistan. Russia and CIS states were seriously concerned about endless insurgence of armed groupings, arms and drugs from Afghanistan to Central Asia, and had own pragmatic reasons to support US actions. Such a unanimity would be much more difficult to repeat in cases of potential forceful actions against Iraq (or, even more so, against Iran or North Korea).

The very notion of "preemptive strike" was in past decades widely used and debated in nuclear doctrines and policy. But in that context preemption had much more clear-cut sense. Nuclear massive strike, or mechanical preparations for such strike are clearly located in space and in time, and could be clearly attributed to somebody's state policy and state decisions. If now preemption is "replanted" to general political strategy of use of conventional force against growing external threat, then international community deals with much more amorphous situation of "strike against tendency" rather then "strike against clear-cut dangerous actions". And tendency is always hard to estimate, there is a lot of space for subjectivity and hidden side-interests.

The war against the Taliban was in a sense a preemptive action. And already then the issue was raised: in which format proofs should be collected and produced to the international community regarding "guiltiness" of a certain political regime? In principle such proofs should be in time and in all clearness presented to the international community embodied in the UN and its Security Council, but still that would mean a decision "behind closed doors", the decision subjected to various lobbying and attached side-interests of powers, especially of the "big Five".

A more democratic procedure would require governments, parliaments and, preferably, public of major (if not all) states to get acquainted with information which qualifies "death penalty" for certain political regime and for significant part of population with it (Hussein wouldn't die alone).

Even in case of a war against Taliban that was not done. Revealing of limited information regarding (by that time not fully clear) connections between terrorist attacks in the USA and political regime in Afghanistan to heads of states of big powers (including the Russian President) was done by US authorities "under big secret", behind closed doors, without the intention to make information a subject to debates in parliaments and in the very last moment before already prepared and inevitable US military action. This cannot be considered the appropriate way of legitimization of "death penalty".

The mechanism of legitimization of decision regarding Iraq (through IAEA international inspections with further presentation of findings to the UN SC and followed by the UN resolution) seems much more formally appropriate from the point of view of most fractions of Russian political elite. At the same time there are voices in the Russian (as well as Western European) politico-academic community that a UN mandate as such is very initial and very formal. The UN resolution fixes temporal (sometimes tactical) consensus of major powers at certain concrete moment of international crisis, while the very political situation and situation at war theatre changes constantly.

An analysis of UN peace operations in conflict areas shows that in too many cases a UN mandate (as well as mandates of regional organizations) serves as a 'carte blanche', justifying the beginning of operation but lacking far behind events in course of it. Routine UN practice of renewing mandates for military operations every 6 months obviously is too slow for mobile campaigns like another "Desert Storm" or Afghan war. But attempt to diplomatically coordinate new consensus of big powers every week in course of dynamic operation will not work for numerous reasons as well. In 1993, for example, when CSCE first (and last) time in its history coordinated mandate for CSCE peace-keeping operation for Nagorny Karabakh, consensus among mandating powers collapsed before troops and finances for operations were collected. As a result, elements of 'carte blanche' are always present in mandates for UN or coalitions operations, and the less concrete and more 'empty' mandate sounds, the easier it is to reach consensus on it.

The issue of "preemptive use of force" on behalf of the international community requires clarification of who exactly uses the force and on whose behalf (legally and politically). One of the international tendencies of the 80s and 90s was a shift from UN interference into crises towards interference by regional interstate organizations on the basis of their own decisions.

In 1983, the Organization of American States (OAS) mandated military interference on Grenada (in absence of consensus in UN).

The Organization of African Unity (OAU) and ECOWAS on the African continent mandated and practically undertook several regional collective military interferences in crises areas (including, for example, large scale joint military operation of military contingents from 7 African states on the territory of the Central African Republic).

In Eurasia, the Commonwealth of Independent States (CIS), as mentioned above, mandated and practically undertook use of military force on behalf of regional organization in Tajikistan and Abkhazia/Georgia (the Tajik operation lasted for 8 years with multiple renewed mandate, the Abkhaz operation is still not finished after 8 years).

In East Asia, the ARF (Asian Regional Forum – the conflict-resolution 'arm' of ASEAN) initiated sanctions against Vietnam when it was in conflict with Campuchea.

In Europe, the CSCE/OSCE created a precedent of mandating regionally abortive military operation for Nagorny Karabakh, and NATO (while formally denying status of regional security organization under UN Charter Chapter VIII) mandated and performed use of force against Belgrade.

A little bit earlier, the Western European Union (WEU, that time yet separate from EU) adopted its doctrine of involvement into conflict resolution which stated that WEU could interfere into conflicts with use of military force not only by UN decision, but on the basis of its own decision of group of participating states.

Such a tendency of 'regionalization' of use of collective force was not opposed by the UN. Vice versa, the United Nations, over-burdened with unfinished operations in numerous conflict areas applied in the 90s to regional organizations and ad hoc coalitions of states to volunteer to deal with regional and local crises and conflicts.

Last decade also de facto legitimized the practice of delegating of authority to use force on behalf of international community to ad hoc coalitions of states or strong organizations. Decade of 90s started with the 'Desert Storm' operation where the UN mandate delegated the lead and command of operations against Iraq to the US military machine. This culminated in delegating the leading authority in the Bosnian operation to NATO (IFOR/SFOR) after the collapse of the UN-led UNPROFOR, and ended with operations in East Timor, where the Australian military got a UN request and blessing for doing the main job on the conflict site.

Though in each such case wide coalitions of 20 to 30 plus states were formally created, obviously, the chief 'contracted' power got enormous influence (militarily and politically) on course, direction and outcome of operation.

Both visible tendencies (regionalization of conflict resolution and delegation of use of real force authority to available strong national or regional military machines and coalitions) mean further distortion of the "theoretically neutral" United Nations model of interference. In fact, what is now done in the name of the world community, very rarely represents the world community in an operational sense. And in the case of hypothetical "preemptive" strikes such tendencies create even more concerns. Instead of democratization of decision-making regarding such a thin matter as international interference into crises, in reality we observe opposite tendencies: a narrowing of the circle of actual decision-makers, and narrowing (and hierarchization) of the circle of "executors" of the "will of the international community".

Currently three new international 'actors' have been formed in the sphere of international use of force. Firstly, the European Union is finishing the creation of Rapid Reaction Forces of above 60,000 military representing EU nations. Secondly, after the reorganization of Collective Security Treaty between 6 CIS nations, the Rapid Deployment Forces for Central Asia were created with participation of Russia, Kirgizstan, Tajikistan and Kazakhstan. Thirdly, after the Prague summit NATO started the process of creation of 20,000-strong mobile forces not to lag behind the USA in out-of-area operations of Afghan or (potentially) Iraqi type.

There are very limited attempts to coordinate even between EU and NATO "fire brigades" structures, and not at all attempts to get into doctrinal, operational or inter-operability dialogue between them both and CIS comparable structure. At the same time it is clear that in case of any military activities around Iraq all the three of them would be brought in high military readiness and relocated to close proximity with each other. How could international community talk of "collective coordinated preemptive action" if three military rapid reaction machines trained for such actions don't talk to each other ? Same problem manifested itself when in course of operation in Afghanistan NATO as collective structure was de facto marginalized by the US military, and most of coordination between USA-UK, USA-Russia, and even Russia-Uzbekistan, Russia-Kazakhstan (on air-corridors and use of bases by Americans) was done on 'semi-closed' bilateral basis, without real involvement of UN, NATO or CIS channels and mechanisms.

To sum up, how could potential Russian stand on preemptive use of force on international arena be modeled?

First, on the level of general political sense Moscow seems not to welcome doctrinalization of preemptive use of force. Previous 'coding formula' for current interference needs of big powers (which was "anti-terrorist counter-actions") was easily and willingly supported by Moscow because it allowed to re-consider Western attitude to Russian actions in Chechnya. But 'preemptive use of force' doesn't supply Moscow with any extra capabilities in sphere of its vital interests while may create necessity of hard choices regarding former or current semi-friends (North Korea, Iraq, Iran, Cuba, etc.)

Secondly, on the level of legal decisions and legitimization in purely legal sense Moscow insists on strict realization of procedural formalities: coordination of essence and wording of UN SC resolutions mandating use of force by the international community. Like in cases of two operations in Bosnia and Kosovo (and several other less controversial cases) whenever 'the voice of Moscow' was heard and taken into consideration during open and close debates and trade-offs in the UN SC, and whenever the West and Russia compromised on a certain decision, then Moscow becomes a loyal partner in implementation of such a decision, and another period of "brotherhood-in-arms" tactical alignment starts.

Thirdly, behind the level of formalities and legal principles lays the layer of pragmatic geostrategic, political and economic interests of great powers. Matter of having or not having access to WMD is a thin matter (USA, Russia and half a dozen more influential states are 'guilty' themselves, Russia does not want to de-nuclearize, and nobody is ready, for example, to 'punish' India, Pakistan or Israel for getting access to nuclear weapons). Thus, motivation, time frame, conditions and format of preemption of WMD proliferation remains a matter for political bargaining where nothing is clearly pre-defined. International law doesn't help much behind the thin fence of requirement to have UN SC resolution on any such preemptive use of force. And economic interests of big powers already couldn't be put aside in cases of Iraq, Iran, etc., as they were put aside in case of the Taliban (which was economically irrelevant almost to all states). So, matter of preemptive use of force on international arena against "unreliable" political regimes becomes an arena for serious balance of pragmatic interests of big powers with all attached consequences.

Fourthly, on the level of internal political spectrum, public opinion, propaganda and media in Russia concept of preemptive use of force remains and will remain a source for numerous criticism and contradictions. Public opinion will obviously be split and significant portion of public will find in "preemptive strikes" approach another manifestation of "plot of the West against Russia and developing countries". But until loyalty to current President and his administration remains high among political establishment and majority of public, voices of criticism would be kept deterred or jammed, if Russian political leadership announces extension and continuation of 'strategic partnership with the USA and the West' on this 'preemption' matter.

Thus, it brings all discussion back to focus on the third conclusion: key to decisions on "preemption' matter lays neither in UN corridors, nor in domestic public opinion, nor even in 'behavior' of the 'questioned' states and regimes themselves, but rather in pragmatic balance of interests of great powers regarding these states and regimes.