Preventive
Intervention After 9/11
Steven
Lee
Intervention
(short for military intervention) is the use of military force by one state
(the intervener) against another (the target state) when the force is not in
reaction to military aggression by the target state.[1]
Intervention is not defense against an attack. This makes intervention morally
problematic because jus ad bellum is
understood to imply that military force is justified only when it is defensive
in this way. This paper is about the moral status of preventive
intervention, one form of intervention.[2]
In
launching a preventive intervention,[3]
the intervener seeks to prevent an expected future war of aggression against it
by the target state. Preventive intervention is a response not to actual
aggression, but to aggression expected at some indefinite time in the future.
Generally, the intervener expects future aggression because it perceives the
target state as an opponent whose military power is on the rise relative to the
intervener. Preventive intervention is based on the intervener’s calculation
that it is better to fight now, when it has a military advantage, than later,
when it does not.
One
might argue that preventive intervention is self defense, rather than
aggression, given that it is undertaken to avoid aggression, albeit an expected
future aggression. Preventive intervention seems to be a kind of anticipatory
or pro-active self-defense. It cannot be both aggression and defense, because
these terms are, in the morally relevant sense, mutually exclusive. To say that
an act of military force is aggression is to offer a prima facie moral condemnation, and to say that it is defense is to
offer a prima facie moral justification (as in jus ad bellum). It
would be question begging at this point to regard preventive intervention as
defense in the morally relevant sense, because its moral status is precisely
what is in question. One way to ask the question whether preventive
intervention is morally justifiable is to ask whether it is sometimes an
instance of defense, in a morally relevant sense, rather than aggression. David
Luban points out that arguments for the moral justifiability of preventive
intervention “in effect assimilate preventive war to the paradigm of self-defense.”[4]
PREVENTION AND PREEMPTION
First, consider
the distinction between prevention and preemption. Preemption seems to hold a
middle position between a straight-forward case of defense, as in a reaction to
an attack, and a preventive use of force. Like prevention, preemption involves
an initiation of force, a first strike, so it seems to be a case of aggression.
Yet, preemption is often regarded as defense in the morally relevant sense, and
so as sometimes justified. If it turns out that a plausible way of
distinguishing the two picks out a morally relevant difference between them,
then, to that extent, the initial intuitive view that preventive intervention
is not justified is confirmed.
A common way of
glossing the distinction is to characterize preemption as a response to an imminent
attack, and preventive intervention as a response to an attack that is not
imminent. In this respect the distinction between preemption and prevention
turns on how imminence is understood. Imminence is a temporal notion. Some
event is imminent, if it is to happen very soon, if it is about to happen, and
an event is not imminent, if it is expected not very soon. There are two
immediate problems with this way of characterizing the difference between
preemption and prevention. First, it provides a very imprecise standard: how
soon is very soon? Second, it is not immediately clear why this temporal
difference makes a moral difference. But imminence may be a stand-in for
something that is morally relevant.
What that something
is is suggested by Yoram Dinstein, who speaks of a first-strike being justified
when the opponent has undertaken an “incipient armed attack.” He characterizes
this as “an irreversible course of action” leading to an attack, an action
which makes an attack “practically unavoidable,” or an action by which the
opponent commits “itself to an armed attack in an ostensibly irrevocable way.”
In the light of this characterization, the basis of the distinction is that
preemption is “interceptive” while prevention is “anticipatory.”[5]
Replacing the idea of imminence with that of incipience makes even clearer the
moral basis of the distinction between preemption and prevention. It makes
clearer that a state launching a preemptive attack has a right to do so.[6]
A state launching a preventive intervention may have no such right. But if such
a right shows why preemption may be justified and prevention not, we still need
to understand what constitutes that right and determine its genuine moral
relevance.
NEW CIRCUMSTANCES?
The
current relevance of this paper topic is, of course, that arguments have been
advanced that the terrorist attacks on the
(a) there are
international networks of terrorists independent of states and bent on civilian
attacks in developed states;
(b) these terrorists
may be able to get their hands on weapons of mass destruction and would have no
compunction against using them; and
(c) some states
(so-called rogue states) may themselves be prepared to attack developed states
with WMD or help terrorists acquire WMD.
The
implication, some argue, is that prevention may be justified on the same
grounds as preemption. This case is made by the Bush administration in its
September 2002 National Security Strategy, which contends that WMD have allowed
states and groups with greatly inferior military capabilities to challenge the
For centuries,
international law recognized that nations need not suffer an attack before they
can lawfully take action to defend themselves against forces that present an
imminent danger of attack. 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, navies, and air forces
preparing to attack. We must adapt the concept of imminent threat to the
capabilities and objectives of today’s adversaries.[7]
The argument is that what justifies
preemption in the traditional sense also justifies the kind of preventive
interventions that the document seeks to defend, whatever they are called. After
we examine the moral status of preventive intervention in general, we will
return to consider whether the new circumstances make a difference in the scope
of justified instances of preventive/preemptive war.[8]
JUST WAR THEORY AND PREVENTIVE
INTERVENTION
To
begin, consider how preventive intervention fares in terms of the traditional
criteria of just war theory. The traditional criteria of jus ad bellum
are just cause, proper authority, proportionality, right intention, and last
resort. These are usually understood as necessary conditions, that is, all of
them must be satisfied for a military attack to be justified. I want to
consider preventive intervention in the light of three of the conditions: last
resort, proportionality, and just cause.
The
last resort criterion poses a serious obstacle to justifying preventive
intervention. It is hard to imagine a preventive intervention that is a last
resort. As a practical truth, if not a necessary truth, preventive
intervention, by its nature, seems unable to satisfy the last resort
requirement. Because the aggression to be avoided is in the indefinite future, there
would always be other resorts to be tried, alternatives to war, for example,
negotiations, alliance formation, beefing up deterrence, and so forth. Because
of these other resorts, preventive intervention cannot be a last resort.
Indeed, given the availability of alternatives, it seems that preventive
intervention can never be a matter of military necessity. A war of preventive
intervention is always a war of choice.
The problem with
proportionality is that even if we could know the dimensions and likelihood of
the expected attack, and hence could calculate the requirement of
proportionality, it is very likely that an effective preventive intervention
would fail to be proportionate. To be effective, a preventive intervention is
likely to require “regime change” because the danger of the expected aggression
lies in the intentions of those in power in the target state. The leaders of
the target state must be removed to remove the danger. The goal of the
intervention must be, as with all cases of regime change, unconditional
surrender. Michael Walzer argues that unconditional surrender is an
illegitimate war aim, except with a morally horrendous regime like Nazi
Germany.[9]
It is appropriate to place this moral concern under the criterion of
proportionality. When unconditional surrender is an illegitimate war aim, the
suffering imposed in achieving it would make the intervention disproportionate
to the good achieved.
So preventive
intervention seems to fail two of the criteria for a justified military action,
last resort and proportionality. If each is a necessary condition, then
preventive intervention cannot be justified. But some theorists would
understand the criteria of jus ad bellum not as individually necessary,
but rather simply as factors to be considered and weighed against each other in
coming to an overall moral judgment about a military action. All of the
criteria must be considered, but some may be outweighed by the moral exigency
of the situation. If a great deal is at stake, if the danger is grave enough or
the injustice to be countered serious enough, this may outweigh the failure of
the considered military action to satisfy all of the criteria. In just war
terms, the moral exigency to which a preventive intervention is a response is
probably best measured in terms of the ad bellum just cause criterion. But
if we are going to consider just cause as a criterion to be weighed against
others, it must be understood as a matter of degree, not simply as a threshold
condition, as it would be if it were a necessary condition. The cause in
question may be more or less just, and the more just it is, the more it is able
to outweigh any failure of military action to satisfy other criteria, such as
last resort and proportionality.
As we turn to
consider just cause, we will need to depart somewhat from traditional
understandings of just war theory. If just cause is as a matter of degree
rather than a threshold condition, it is appropriate to assess it by taking
into account a variety of moral considerations, not simply the single
deontological dimension that constituted the range for just cause when
understood as a threshold condition. A moral judgment of just cause regarding
preventive intervention raises various deontological and consequentialist
factors.[10]
JUST CAUSE: DEONTOLOGICAL
CONSIDERATIONS
Our
concern is jus ad bellum, where the deontological considerations are
closely tied to the notion of sovereignty and a set of domestic analogies. The
basic idea is that states in international society are relevantly like
individuals in domestic society in that the moral import of individual autonomy
is mirrored by the moral import of national sovereignty. So, for example, as
preventive “punishment” or detention of individuals is contrary to their
autonomy and morally wrong, so preventive intervention is contrary to a state’s
sovereignty and is morally wrong.[11]
As it is morally wrong to sanction individuals based not on anything they have
done, but on what they are expected to do, it is morally wrong to initiate war
against a state based not on anything it has done, but on what it is expected
to do. Another way to make this point is to claim that preventive intervention
is morally wrong because it interferes with activities that are within the
target state’s proper jurisdiction.[12]
The moral basis for this claim is again the domestic analogy, an extrapolation
from the observation that coercive interference with an individual is morally
wrong when it impinges on activities that are within that individual’s area of
free action. As individuals have rights that preventive coercion would violate,
states have rights which preventive intervention would violate.
A
domestic analogy can also be used to show why preemption is sometimes justified
but prevention is not. The analogy is with individual self-defense. An
individual’s right to self-defense extends to the use of force to stop an
attack that has already started, even though no blows have yet landed. This is
the analogue of preemption. The analogue of prevention, which is impermissible,
is attacking someone who has not yet begun to attack you, but whom you believe
will attack you in the indefinite future. This is not genuine, morally
permissible self-defense.[13]
The domestic analogue of preemption may also be seen in certain features of
domestic law, such as conspiracy or attempt. In these areas, individuals may be
punished for an action they intend to do but have not yet carried out. It is
crucial for legal liability in these cases, however, that they have done
something, taken some action, that puts the intention into motion. In the
absence of that incipient action, there is no legal liability. To impose
liability in the absence of that action would be preventive rather than
preemptive, and is not legally acceptable.
JUST CAUSE: CONSEQUENTIALIST
CONSIDERATIONS
For
the consequentialist case, the real evil of war is not the violation of
sovereignty, but the suffering war imposes on individuals.[14]
I first consider the consequentialist case in its own right and then consider
how it stands in relation to the deontological case. In examining the
consequentialist case, I will consider, first, the direct consequences of some
particular preventive intervention on the two belligerents and, second, the
indirect consequences, by which I mean the general effect of preventive
interventions on the international system as a whole.
A preventive
intervention occurs when the intervener believes that the opponent is growing
in military power and will engage in aggression when it is stronger. If the
intervener’s beliefs are true, then the intervention will likely lead to a
smaller war than the one otherwise expected in the future, and the smaller the
war, the less the suffering. This argument, call it the pro argument, is
the main consequentialist case for preventive intervention. The principal
consequentialist advantage alleged for a preventive intervention is that it is
the lesser of two evils, evils being understood as overall aggregates of human
suffering.
According to the
pro argument, the benefit of a preventive intervention is the avoidance of the
future war of aggression by the opponent, a war that would cause more suffering
than the one caused by the preventive intervention itself. But it is less than
certain that such a war would occur in the absence of the intervention.[15]
Potential interveners often speak of the “inevitability” of the opponent’s
future war of aggression, should they not intervene.[16]
But this bald attempt to deny both the speculative nature of the prediction of
the future war and the need to discount the alleged benefits of the
intervention in avoiding that war clearly fails.[17]
Richard Betts notes: “It is almost never possible to know with enough certainty
that war is inevitable . . . to warrant the certain costs and risks of starting
it.” He also notes that “briefs made for preventive war in the past have proved
terribly wrong.”[18]
The
conclusion of these considerations is that preventive interventions are less
likely to be acceptable on consequentialist grounds than they appear from the perspective
of the potential intervener. A preventive intervention is likely to make things
worse for the two belligerents together and worse for each of them separately.
Thus, we have
A
preventive intervention has consequences not only for the two belligerents
(what I am calling its direct consequences), but also (indirect) consequences
on the international system as a whole. Some particular preventive intervention
might, contrary to the tendency argued for above, have positive direct
consequences, but these likely would be outweighed by negative indirect
consequences. The principal indirect consequence of preventive interventions is
that their occurrence lowers the threshold for the use of force, increasing the
frequency of future war. Preventive interventions expand the conditions under
which the use of force is seen as appropriate, leading to “innumerable and
fruitless wars.”[20]
There are three
basic, overlapping mechanisms to explain this. First, preventive interventions
lead to an increase in the number of wars through the precedent effect, which is the tendency for one such intervention
to lead to others, for example by reducing the perceived costs to interveners. That
another state has already broken a norm against preventive intervention tends
to lessen the severity of the international opprobrium directed at the
intervener. Second preventive interventions lead to an increase in the number
of wars by making available to potential inteveners the pretext argument, which, like the precedent effect, is a way in
which a preventive intervention lessens the perceived costs for states engaging
in aggression in the future.[21]
By using as an excuse for their own aggression an earlier intervention by
another state, a state can expect to lessen the negative reaction of the
international community. Third, preventive intervention leads to greater international instability, which is a
source of further increase in the risk of war. It does so by undermining
deterrence. Successful deterrence requires not only that states expect that
their aggression would be met by retaliation, but also that their restraint or
nonaggression would leave them free of attack. If aggression, whether or not in
the form of preventive intervention, is more frequent, the latter requirement
is not satisfied. For example, if preventive interventions were common, there
could come to exist between opponents “a reciprocal fear of surprise attack,”
which would make war between them more likely.[22]
Thus, there are
two mutually supportive consequentialist arguments against preventive
intervention. First, a focus on the direct consequences of preventive
intervention shows that states have difficulties in predicting their opponents’
future aggression and a tendency to overestimate the risk of that aggression. Second,
there is a consideration of indirect consequences. Preventive interventions
help to weaken any international norm prohibiting preventive intervention and
to create or strengthen an international norm permitting preventive
intervention.
Finally, we
consider the relation between the consequentialist and deontological cases
against preventive intervention. The general formula for this relation is that
a deontological case against some action can be outweighed by a
consequentialist case in favor of it, only if the consequentialist advantage is
great. A minor consequentialist advantage is not sufficient to outweigh a
deontological case. This formula is represented in the case of just war theory
by Michael Walzer’s argument for supreme emergency, according to which a state
can ignore deontological constraints of jus
in
NEW CIRCUMSTANCES AGAIN
Do
our new circumstances alter the conclusion of either the deontological or
consequentialist arguments against preventive intervention? The deontological
argument appears to remain in tact. Nothing in the new circumstances alters the
features of preventive intervention that make it wrong from a deontological
perspective. Under the new circumstances, as under the old, the conditions
making the potential target state liable to attack are the same: if there is
incipient action, then (preemptive) attack may be justified; if not, then
(preventive) attack would not be justified. The inadequacy of mere intention for
liability shows preventive intervention unjustifiable whether under the old or
new circumstances. In the absence of an incipient action, military attack would
still be undertaken without right.
Where
things may be different is with the consequentialist case. The new
circumstances change the consequentialist calculations because, given the
potential availability of WMD technology to terrorist groups or rogue states
bent on attacking other states, those states are now at greater risk of
aggression. So their military inaction in the face of expected aggression
carries more of a risk, which strengthens the pro argument. But not enough. The
direct consequences of preventive intervention may now be more favorable for
would-be interveners than under the old circumstances, but it does not follow
that, given the difficulty and tendentiousness of predictions discussed
earlier, they are overall positive for that state. Even less does it follow
that the overall direct consequences of preventive intervention for both
belligerents now favor the action.[24]
Even less does it follow that the overall consequences of preventive
intervention, including the indirect consequences, now favor the action. The
tendency of preventive interventions to increase the number of wars by fostering
a permissive international norm remains a powerful obstacle to any claim that
the action has overall consequentialist advantage. Finally, even less does it
follow, in the face of the deontological case against preventive intervention,
that there could be sufficient consequentialist advantage under the new
circumstances for preventive intervention to be justified by a
supreme-emergency type appeal.
Let
me briefly consider one response that defenders of the moral permissibility of
preventive intervention might offer, which is that the consequentialist
argument presented earlier is not subtle enough. In its consideration of
indirect consequences, the argument, in effect, compares a permissive rule or
norm regarding preventive intervention with a prohibitory one, finding the
latter preferable. But there is a third option, a kind of middle ground. This
is a permissive rule with additional restrictions, that is, a rule that permits
preventive intervention only when additional qualifications are satisfied. Given
the right set of qualifications, the resulting rule might minimize the indirect
negative consequences of preventive intervention by limiting the conditions
under which the rule would be applied. Procedural qualifications might be
especially helpful in this regard. So far we have been looking mainly at
substantive conditions, but procedural conditions, such as requiring that a
state receive the permission of some international body to launch a preventive
intervention, might reduce the negative indirect consequences a permissive rule
would have.[25]
But this response
is stymied by the conjunction of two factors. First, the response must be
backed by a showing that there is a high level of consequentialist advantage
from the more restricted permissive rule in order to satisfy the
supreme-emergency type argument needed to show that that preventive
intervention is justified overall. Second, the consequentialist advantage
claimed for such a rule must be established in the face of the fact that the
consequentialist success of rules often depends on their drawing bright lines. “No
first use” as a prohibitory rule establishes such a bright line. But a rule
allowing aggression in some circumstances does not do so because the
satisfaction of the rule depends on judgments that are inherently controversial
and strongly subject to bias. The restrictions, of course, are designed to
minimize this tendency, but they cannot take the rule outside the area of
controversial and potentially bias judgments. As a result, it is not clear that
a more restricted permissive rule could achieve the high level of
consequentialist advantage necessary.
NOTES
[1]
The general category of intervention refers to coercive interference by one
state in the affairs of another, so that there are other forms of intervention
besides the use of military force, examples being deterrence and economic
sanctions.
[2]
Humanitarian intervention is another kind. While both humanitarian and
preventive intervention are forms of intervention, they have quite different
moral characteristics, and thus should not be lumped together. I will sometimes
refer to preventive intervention as simply prevention.
[3] Once a preventive intervention meets military
resistance, it becomes a preventive war. I will for the most part use the terms
preventive intervention and preventive war interchangeably, though I will
consider later one sort of case where preventive intervention may not develop
into preventive war.
[4]
David Luban, “Preventive War,” Philosophy & Public Affairs 32, no. 3
(Summer 2004), p. 221.
[5]
Yoram Dinstein, War, Aggression and Self Defense, third ed. (
[6]
Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), p. 79.
[7]
The National Security Strategy of the United States of America, http://www.whitehouse.gov/nsc/pdf,
p. 15.
[8]
Note, by the way, that the
[9]
Walzer, Just and Unjust Wars, pp. 111-117.
[10]
Not all moral considerations need be subsumed under just cause because some are
represented by the other criteria, such as proportionality. There will,
however, inevitably be overlap.
[11]
Of course, a domestic policy of preventive detention is being advocated because
of the new circumstances, just as a policy of preventive intervention is.
[12]
See Luban, “Preventive War,” p. 213.
[13] Here though there is a point of disanalogy. Part of
the basis of our belief that a preventive attack among individuals is
impermissible is that normally the police are available to help to insure that
the future attack does not occur. (See Jeff McMahan, “Preventive War,” MS, p.
7.) Since there is no international police force, the analogy may fail. But it
seems, though an argument is required here, that the availability of the police
overdetermines the impermissibility of individual preventive attack. It would
still be wrong even in the absence of the police.
[14]
Luban, “Preventive War,” p. 218.
[15]
This is especially the case given the other preventive measures the potential
intervener can take, the other resorts that make preventive intervention not
the last resort, as discussed earlier.
[16]
Jack Levy, “Declining Power and the Preventive Motivation for War,” World Politics 40, no. 1 (October
1987), p. 98.
[17]
One prominent example of the speculative nature of such predictions is the case
made for the
[18]
Richard Betts, “Striking First—A History of Thankfully Lost Opportunities,” Ethics
and International Affairs 17, no. 1 (2003), p. 18, and Betts, “Suicide from
Fear of Death,” Foreign Affairs 82, no. 1 (January/February 2003), p.
40.
[19]
Levy, “Declining Power,” p. 103. See also Betts essay by this title.
[20]
Walzer, Just and Unjust Wars, p. 77, using a phrase from Edmund Burke.
[21]
I owe the term “pretext argument” to Eric Posner.
[22]
See Betts, “Striking First,” p. 19, and Luban, “Preventive War,” pp. 227-28.
[23]
Walzer, Just and Unjust Wars, pp.
251-263.
[24]
The outcome of the 2003
[25] Such a rule, including elaborate and carefully
thought through procedural qualifications, is proposed by Allan Buchanan and
Robert Keohane in “Preventive Force: A Cosmopolitan
Institutional Perspective,” Ethics
and International Affairs 18, no. 1 (Winter 2004), pp. 1-22.