The Special (Moral) Circumstances of Preventive War
Stephen E. Lammers, Ph.D
Preemptive and preventive wars
recently have come under a good deal of
scrutiny. One of the central
questions concerns when, if ever, it is justifiable to wage them. Few scholars have paid any attention to the
question of whether either type of war might have special moral
responsibilities associated with them assuming that it is justifiable to wage
such wars at all. That is the question
that concerns me in this paper. After
trying to get clear on the difference(s) between preventive and preemptive war,
I will spend the remainder of the paper discussing what I take to be the
special moral responsibilities associated with preventive war. I want to stress that the paper is a thought
experiment within the just war tradition, a thought experiment which might best
be understood as responding to the following question: Assuming that it is possible to distinguish
between preemptive and preventive war and assuming that it is justifiable to
wage preventive war, what might be the special moral requirements associated
with this type of war, requirements that may or may not be associated with the
usual requirements of waging a justifiable war?
I hasten to add that it is preventive war and not preventive attack that
is the subject of the thought experiment and it is war between states that is
the focus of my attention. I further
hasten to add that when I speak of preventive war, I will assume that if it is
justifiable, not only the
I. Any discussion of “preventive” as opposed to preemptive war runs a not inconsiderable risk. The discourse in the larger society uses the term “preemptive war” to talk about a variety of forms of warfare, often without any clear definitions or descriptions of what is at stake.<![if !supportFootnotes]><![endif]> The consequence of this is that if one argues that preventive and preemptive wars are different in important ways, one must articulate that difference. It may be the case that there are situations when one type of warfare begins to shade over into another type; the world is a lot messier and a lot more interesting than our categories. Yet if we begin with some clarity about what it is that we think we are doing, we will be better prepared for those moments when the world presents us with those occasions when reality is more complex than our analysis of it. The question remains however, where to begin in order to understand.
I am responsible for a course in
the New Testament so it is not surprising that I want to begin with two texts,
both of which are well known. The first
text is from the section entitled “Anticipations” in Michael Walzer’s Just
and Unjust Wars and the second is entitled, “The National Security Strategy
Walzer distinguishes between
cases of preemption, which he thinks is sometimes justifiable, and prevention,
which he does not. He uses the
oft-quoted statement of Daniel Webster in the Caroline case to assist
him. Webster wrote that in order to
justify preemptive attack, one must show “…a necessity of self-defense…instant,
overwhelming, leaving no choice of means and no moment for deliberation.”<![if !supportFootnotes]><![endif]> In the rest of discussion of these two
types of wars, Walzer contrasts the Six Day War with the war of the Spanish
Succession. He thinks that the first
fits under Webster’s description of preemptive war and the second, which was
waged in order to maintain the balance of power in
Presuming for the moment that
Walzer is correct in his moral assessment of the two types of war, we still
need to learn if either type of war is under consideration today. Thus the need to turn to the second text on
National Security. Before I turn to the
text, I would like to note the context of the statement as it is outlined in
the letter from the President accompanying it.
In that letter, the President indicates that it is part of the
responsibility welcomed by the
The text of the “The National
Security Strategy…” never formally speaks of “preventive warfare” but
uses the term “preemptive” any number of times, among them in a section
entitled (not without some irony for my purposes) “Prevent Our Enemies From Threatening
Us, Our Allies, and Our Friends with Weapons of Mass Destruction.” The text provides us with a puzzle in the way
in which it talks about preemptive warfare.
On the one hand, it reiterates that it is long standing American
doctrine that preemptive war is permissible and that
The central claims about a new
type of war come in Section V of the document, which takes up threats from
enemies with weapons of mass destruction.
Our current situation is contrasted with that of the Cold War, where, it
is argued, deterrence and the doctrine of mutual assured destruction served to
The Statement goes on to make its major claim. It notes that preemption is legitimate under international law but that the concept of “imminent threat”, the type of threat whose existence justified the preemptive response, that concept needs to adapted to our new circumstances. Here the ambiguity that underlies the text is displayed. Let me quote again from the Statement itself. ”Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, names, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”<![if !supportFootnotes]><![endif]> Note that beyond the usual considerations, we have to consider the capabilities and, this is important, our estimate of their intentions with respect to those capabilities.<![if !supportFootnotes]><![endif]> A little later on the same page we read:
usual understanding of preemptive war against an imminent attack is not denied
but, the National Security Statement argues, it is not sufficient for our new
circumstances. It does not appear that
the threat(s) to the
second text interests me for any number of reasons. As a theologian I am intrigued by the context
within which these quotes are set and by the hubris displayed throughout the
document. Quite candidly, the claims
Third, I am intrigued that this new
doctrine is announced, without debate and without consultation with the
point under discussion, all one can ascertain is that the
II. It is the concept of preventive war that intrigues me. Wars of prevention, undertaken to prevent a threat not realized from ever becoming a realized threat, open up the possibility of many more wars. Commentators within the just war tradition generally are worried when countries announce doctrines that would increase the possibility of more war. More worrisome still is the fact that preventive war, as understood in the document, is not recognized under international law, except, it would appear, to be forsworn.
Even if one
could overcome these kinds of worries, we need to know if there might be, and
if so, what might be the special moral responsibilities that one would have if
one were to wage a preventive war? Or
does preventive war proceed under the same moral limitations as preemptive war
and not entail any more moral responsibilities?
It appears that this is the case for the authors of this document since
they focus on when war might be undertaken.
There is no reflection on whether something else might be required of
entire discussion assumes of course, that it is possible, at least
theoretically, to make an argument for the justifiability of preventive war as
it is described in this document. For
the remainder of this paper, I am going to assume the opposite of Walzer’s
conclusion given above. Namely, I shall
now assume that preventive war is justifiable and I will make the assumption
within the context of the just war tradition.
What follows then is a thought experiment. What I am going to attempt to do in the
remainder of this paper is to argue that preventive war involves special
responsibilities that, up until now, have not been discussed under just war
criteria as these criteria are usually put forward. The practical implication of this is
direct. Those who argue that what is in
effect preventive war is now permitted and/or required given the kind of
threat(s) to the
III In order to answer the first question, I want to focus on a feature of preventive war that is assumed but not generally taken into account in a systematic way. That feature is time.
When one wages a preventive war, the necessity for going to war is of a different kind than when one usually speaks of war. Especially within the tradition of justifiable war discourse, war, if it is to be morally permissible, must have a characteristic of necessity about it, there must be, realistically, no other choice. There must be no other way to solve the problem. The injustice which is being confronted is so serious and life-denying that one cannot wait or the threat to the nation is so imminent that to wait is to give a perhaps fatal advantage to the enemy. One can identify the threat, it is real and it is imminent or it already has manifested itself in attack or occupation. <![if !supportFootnotes]><![endif]>
so in preventive war. Not only is a
particular threat not present; one has the luxury of time. As opposed to the
usual descriptions of defensive war, preventive war gives one time to
plan. Further, the maker of war has aims
with this type of war that are not usually part of the discussion of war
against acts or threats of aggression.
Consider again Walzer’s discussion of the balance of power and
preventive war. The statesmen of
begin: I do not think that any of the usual criteria for a justifiable war
being mitigated or lessened. Taking the
list of criteria from Walzer, the requirements of jus ad bellum and jus
I want to use the term “war” to apply to a contest of arms between nation states. To put this colloquially, there may be threats of conflict from actors not associated with particular nation states but one uses the term “war” one confronts persons who have an address and all the other paraphernalia of the modern nation state. If we are speaking about confronting persons who kill civilians and terrorize them with their attacks, but who are not responsible to a usual command structure nor to a sovereign authority, we are speaking about criminals, serious criminals to be sure. But attacking them does not constitute war and attacking them before they carry out the crimes they are planning does not require the constraints that would be applied should one be making a war against another nation state. Thus what I am speaking about is the activity of war between or among nation states. It certainly may be the case that this is considered because the nation state is not doing what it might in order to constrain the evildoers that are on its territory or is complicit with them. That activity is one different from attacking the criminals directly in order to prevent them from carrying out their crimes.
What I am trying to get at is that even if the criminals are simply being shielded by a nation state unwilling to follow international norms and turn the criminals over to the proper authorities, there is a difference between rounding up the criminals and attacking the state that is shielding them. I realize that in the real world, one might well have to attack a particular nation state in order to “get at” the criminals that it is shielding. The central point is this. When one does this, one has to take responsibility for what happens during and after the war and this responsibility is greater than when one is immediately threatened with war and one responds to that threat. Keep in mind that time is the important variable here. What should be considered in that time under jus ad bellum?
first thing that must be considered, developing the criterion of last resort,
is what else might be done to solve this matter short of war. I want to avoid the trap of thinking that
there is always one more thing to do.
Yet even in avoiding that trap we have to face the fact that we have
options, given the reality of more time, which would not be available in the
usual situation of preemption. There can
be more attention to the other forms of power that are wielded by
nation-states. This is especially true
when one is dealing with states as powerful as the
Second, and this is a jus ad bellum consideration, one has to ask what one holds out as a proposed resolution to the current circumstances, a resolution that would justify going to war in the first place. That proposed resolution will of course have to be tested and there will be disagreements about whether the resolution is either possible or desirable. Yet that proposed resolution should be part of the pre-war discussion insofar as time permits.
Third, prior to the conflict, there has to be a great deal of attention to the immediate postwar situation as opposed to the long term political resolution. One who is attacked and is defending oneself can be forgiven if little time or energy is spent in keeping order in the enemy’s state while the war continues. So too in the case when one is coming to the aid of parties being unjustly attacked by others. Such cannot be the case for preventive war. The reality of time increases one’s responsibility for what occurs immediately after the war since the war is not due to some kind of necessity growing out of defense but grows out of a choice to act now so as to forestall having to act defensively later.
A good place to begin is with the responsibilities of occupying powers under the Geneva Convention.<![if !supportFootnotes]><![endif]> Again, the fundamental point is what is possible, given the constraints that one is operating under when one goes to war and one is in war. The important point here is in a war of prevention, one cannot excuse one’s failure to meet one’s responsibilities as an occupying power because one did not have time to plan for what was going to happen after the war. Wars of prevention are different precisely because they permit one to plan more extensively than wars undertaken to immediately defend against attacks. Lack of time to prepare for the postwar situation is not an excuse in circumstances such as this.
Note here that the matter of excuses also becomes important in another way. In the usual scenario of going to war, one might be excused if one does not have the forces necessary for both fighting the war and keeping the peace while the war fighting continues. One might well imagine that after the war, those forces that fought the war would turn to the task of rebuilding the order that has been destroyed or interrupted. My claim here is that these excuses have less force in a war in which one has a choice about when and where one goes to war. Why?
Let us assume for the moment that in order to remove the future threat, one must overturn the present order in a country. In the process of doing this, one must recognize that one of the burdens of war is the chaos that results in war and the chaos that often follows upon war. This chaos falls particularly hard upon civilians who are caught up in the confusion of war. Recent news reports have made this clear to all of us once again, if we needed to be reminded. War too often means that one order is in the process of being overturned and another order is not yet in place. Again, it may be excusable that the new order to be established cannot yet be established when one is fighting a war of defense. Such an excuse is not plausible when one had a choice about going to war in order to prevent a threat from taking form. One has, and by now you should recognize this as a theme of this paper, one has time. That time should be spent both planning for what should happen and making sure that the resources are in place so that the plans can be realized.
At a minimum, this planning and resource allocation should take two forms. First, one has to restore order so that civilians are safe. The usual functions of government, including some minimal protections of the law, must be taken up by the forces who began the preventive war.
Second, there must be a planning for the restoration of economic and social life as soon as possible. What I mean by this is that the usual structural circumstances of civilian life for this country should be returned to normal as rapidly as possible. In particular, it is important to restore the necessities of life in a particular place. Those features of chaos that lead to disease such as failing water and sewage systems and food distribution systems must be restored as soon as possible. Note that the responsibility for this does not devolve upon civilians in the conquered country, but with the occupying power. They are the ones who have destroyed whatever order that there was prior to the war and it is their responsibility to do what they can to return that order to those who are most harmed by its interruption. To repeat the point above: There are two ways one can fail in this task, first in not planning for it and secondly, in not providing the resources for it. None of this excuses, incidentally, those among the enemy who would sabotage the structures of civilian life, either before, during, or after the war. They are making war against their own people and their perfidy should be recognized for what it is. Their moral wrongs should not, however, act as an excuse for failures on the part of those who initiated the preventive war, failures either in planning or in resource allocation. Indeed, it would not be unreasonable to plan for acts of perfidy after war.
Here a methodological skepticism is in order, the same type of skepticism that gives rise to preventive war in the first place. Those who propose preventive war argue that the future will bring worse circumstances, and that these circumstances will threaten the being or well-being of the state. That same skepticism needs to be applied to thinking about the post-war situation. One cannot assume that things will go well after the war of prevention. They may, but one cannot plan on it.
But claiming that there are additional ad bellum constraints on the waging of preventive war does not capture the full moral responsibility of those who would undertake such wars. Michael Schuck has argued that any just war needs to attend to three principles of jus post bellum. In addition, Brian Orend has written about jus post bellum constraints from the Kantian perspective. Michael Walzer recently has written about this as well. I will use these thinkers to explore what would be required in a preventive war.<![if !supportFootnotes]><![endif]>
When Schuck wrote his paper, he was referring to any war that claimed to be justifiable and was not thinking of preventive war in particular. I want to use the three principles given by Schuck as a starting point and will amend them for preventive war.<![if !supportFootnotes]><![endif]> The first two apply to any war according to Schuck. It is the third requirement that is especially important for preventive war.
calls first for a principle of repentance.
What he means by this is that victors conduct themselves humbly. What Schuck wishes to constrain are
celebrations of victory that do not acknowledge the losses on both sides of a
What he finds abhorrent are celebrations at the “end” of conflict that
trivialize war itself. He uses the
example of General Schwarzkopf parading in
second principle calls for an honorable surrender. Here he wishes to guard against forms of
surrender that refuse to recognize the fundamental human rights of the
vanquished. Schuck had in mind the
Schuck’s third principle is one to which I have already alluded. He calls it the principle of restoration. He has in mind not simply repairing the social infrastructure but eliminating the continuing scars of war from the place of war. Of particular interest to Schuck are the presence of landmines throughout the world, which he reports kill 800 people a month and the presence of which inhibits the restoration of the use of the land upon which and sometimes over which the war has been fought. In my own view, what would count as restoration would be dependent upon what was destroyed in the making of war and what was left behind as a result of war. This is a place where one cannot necessarily plan everything in advance because one cannot know what will be required. What can be planned is that one will have to plan and one has to have the resources in place for the planning and some realistic recognition of what might be required. Two things are not permitted by this constraint. First, it would not be permitted to proceed without any planning and resources to assist reconstruction. Second, what would be impossible would be a situation in which resources were made available and for one reason or another, not used for the purposes of restoration. Again, civilians would be bearing the burden of war here, a burden that it was not necessary to impose upon them for purposes of immediately defending one’s own nation.
A simple example might help in understanding what I have in mind here. If the attack on the enemy in a preventive war involves the destruction of electricity substations, so called dual use targets, then the attacking power must be prepared to repair them. If this is not done, civilians will bear the brunt of war when there were no threats active from their nation. The burden of reconstruction should fall upon the power that makes the war when the war is one of prevention.
For Schuck, as for myself, discussions of jus post bellum are good ways into the discussion of motivations of those who go to war. Displaying inappropriate sentiments after a war is a sign that one’s motivation for entering into war is itself suspect. Acting appropriately after a war is a good test of whether other conditions for a justifiable war, conditions that should have been met prior to the entry into war, have in fact been met.
Orend makes the same general point about jus post bellum
requirements. Orend is concerned to
insure that violators of international law be fairly tried by international
tribunals, including violators from the state that attacks. Further, he brings over some ad bellum
and some in
Walzer focuses on occupations after war and he argues that these can be judged somewhat independently of the justice of the war itself. His basic argument is that all processes should be transparent and he is clear in arguing for democratic goals. His general perspective is that one should not allow a return of those circumstances that gave rise to the reasons for war in the first place.<![if !supportFootnotes]><![endif]>
The careful reader of Schuck and Orend will note that I have, if anything, made their requirements stricter in the circumstances of preventive war. Such is fitting in wars that are not necessary in self-defense or in assisting those who are under attack.
IV. What I have tried to show?
My conclusions are rather modest. If one judges that in some cases preventive wars are permissible, there are special moral requirements that grow out of the nature of war being preventive. These include a higher standard of the criterion of last resort under the jus ad bellum as well as the issues surrounding jus post bellum. The two most important moral considerations for any discussion of the criteria are time, which allows one to engage in far more planning than one might have in the “ordinary” circumstances of defensive war. The second important matter is the moral consideration surrounding who is bearing the burden of the preventive war after the war is over. My judgment is that it is the civilians of the attacked nation. My judgment is that it is up to the attackers to plan to mitigate the effects of war and to bring full civilian life back as soon as possible.
Finally, there is what I call a “methodological skepticism” which pervades this discussion of the responsibilities of preventive war. Given that waging preventive war means taking a very bleak view of what might happen in the future that will lead to war, the same bleak view should be taken with the planning for the post-war situation. In brief, one cannot assume that all will be well for civil and political life given the waging of this war. Here, I simply ask those who would wage preventive war to be consistent. If they have a bleak view of the world with the enemy state fully functional, they should take a bleak view of the immediate circumstances after the fall of the enemy state and plan and act accordingly.
Of course, I might be wrong. That is to say, it may be the case that preventive war is itself never justifiable and thus what I have suggested is and remains only a thought experiment.
Postscript: A Scenario
a country, let us call it
us further assume that it is decided that this threat to the
I am right, two things in general.
First, we need to marshal whatever resources we have to convince
and just as important, we need to be planning for what is going to happen after
the war in
should be one methodological proposal that is in place. Just as we are worried and must take a worst
case scenario approach to the developing situation in
Now if I am correct in the scenario I have proposed, it should be clear that the costs of waging preventive war are quite high. They may not be as high in terms of risk; that after all, is what preventive war is about. They may well be higher in terms of post war reconstruction costs. But then we should not be surprised by this. War is an expensive undertaking and it is likely to remain so. We should not, however, be shifting the burden of war, especially preventive war, to the civilians of the state that we attack.
<![if !supportFootnotes]><![endif]> Those who are advantaged by this, I would
argue, are those who would, either accidentally or purposefully, keep us
unclear about the kind(s) of warfare the
<![if !supportFootnotes]><![endif]> Michael Walzer, Just and Unjust Wars, (3rd edition), (New York: Basic Books), 2000, p. 74, quoting D. W. Bowett, Self-Defense in International Law, p. 50.
<![if !supportFootnotes]><![endif]> Michael Walzer, op. cit., pp. 74-85.
<![if !supportFootnotes]><![endif]> The statement is an echo of the sense of
mission which has marked American exceptionalism in the past and the question
must be asked at the beginning of the inquiry, “Who gave the
The National Security Strategy of the
United States of America, (September, 2002) p. 6., http://www.whitehouse.gov/nsc/nss.html.
Indeed, the claim implicitly has been
contested by George Kennan. Cf., Jane
Meyer, “A Doctrine Passes,” The New Yorker, Oct. 14 and 21, 2003. Available at http://www.mtholyoke.edu/acad/intrel/bush/mayer/htm. (Viewed
<![if !supportFootnotes]><![endif]> National Security Strategy, op. cit., p. 15.
<![if !supportFootnotes]><![endif]> Not unimportantly, all the “knowledge” we might have of their capabilities could be no more than an estimate on our part.
<![if !supportFootnotes]><![endif]> National Security Strategy, Op. cit.
<![if !supportFootnotes]><![endif]> This entire discussion begs a very important point,
which is, what exactly is a terrorist?
It appears from this document that only non-state actors can be
terrorists and that, in addition, groups that target civilians are
terrorists. Are both conditions
necessary conditions or is only one sufficient?
We are not told. The document
leaves aside the important possibility of state sponsored and directed
terrorism which might have a variety of aims.
For more on this issue, cf. Wes Avram’s essay, “Getting Past the
Preamble: One Reading of The Strategy,” in Anxious About Empire,
<![if !supportFootnotes]><![endif]> The comments above do not consider the other difficulty with the current discourse about preemptive or preventive war when it is put in the context of a “war on terror.” The idea of a war on terror is puzzling. It reminds one of a war on evil. Potentially it is never ending since presumably, terrorists will always be with us. The open ended nature of the commitment to the “war on terror” needs more attention than it can be given here. Suffice it to say that “war” is a limited and constrained human activity, that, in principle has an end. The “war on terror” does not appear to be so constrained. To put this another way, how will we know we have won the war on terror?
<![if !supportFootnotes]><![endif]> The medieval understanding of justifiable war was not as constrained in my judgment. One could make war in order to right wrongs that were completed, that were not in the process of being done. Jus ad bellum in the modern context is more constrained.
<![if !supportFootnotes]><![endif]> It is in this context, I suggest, that we should take up the discussion of the matter of spreading freedom and democracy as these goals are outlined in the document on National Security Strategy. It is not just that the threats are to be eliminated; a new order is to be introduced.
<![if !supportFootnotes]><![endif]> This does leave open a number of questions I leave to others to resolve. I will point to two here. First, it would appear that the greater the alternative forms of power at your disposal, the greater is your responsibility to use them before undertaking war. Thus a stronger country would have to do more before waging a preventive war than a country without as many kinds of power at its disposal. Second pointing to the fact that a judgment is required only ups the discussion of who has the authority to make such a judgment and what criteria they might use. I will suggest a negative constraint here. Any allocation of authority cannot be simply a doctrine of executive discretion. Just war thinkers need to reflect on the limits of the authority to make war and on the framework of responsibility that should accompany this part of jus ad bellum today.
<![if !supportFootnotes]><![endif]> For some of the relevant texts, cf., W. Michael
Reisman and Chris T. Antoniou, The Laws of War: A comprehensive Collection
of Primary Documents on International Laws Governing Armed Conflict, (
<![if !supportFootnotes]><![endif]> Michael Schuck, “When the Shooting Stops: Missing
Elements in Just War Theory,” The Christian Century, 111:982-983,
<![if !supportFootnotes]><![endif]> One thing that is helpful about using Schuck and Orend is that both of them use the first Gulf War as their significant example.
<![if !supportFootnotes]><![endif]> I would make two points in addition here. First, there is a difference between acting humbly and repenting for wrongdoing. I would concede that they are often intertwined but not always. In an unpublished paper I take up the issue of repentance after war. The second point is that it is impossible to acknowledge loss if one does not “count the cost” of war or one counts the cost surreptitiously. In any event, the current “practice” of the U.S. military not to count “enemy” losses or the deaths of civilians who are not U.S. citizens would be problematic under Schuck’s (and my) understanding of repentance. Further, it may be asked how one can refuse to count the dead and claim that one has made any attempt to “count the cost” of a particular war.
<![if !supportFootnotes]><![endif]> Contrast, for example, the setting of “Mission Accomplished” with the ancient Roman victory march. The Roman general was accompanied by a slave whose task it was to state, “Remember man, thou are mortal.” (Respice post tem, hominem te esse memento) Pliny the Elder, Natural History 28:39. I owe this reference to my colleague Howard Marblestone.
<![if !supportFootnotes]><![endif]> This is not an argument for the moral equality of terrorists and soldiers captured during a war. It is an attempt to point to the humanity of the captives and the development of procedures that recognize that humanity. Torture is not such a procedure. Nor is shipping captives to states where torture is practiced nor is the practice of not registering persons with the Red Cross who have been captured.
<![if !supportFootnotes]><![endif]> Orend, War and International Justice, op. cit., pp. 217-239.
<![if !supportFootnotes]><![endif]> Walzer, Arguing About War, op. cit. pp. 162-68.