No Justice, No Peace? Pre-emptive, Preventive, and Humanitarian Interventions and the Imbalance of Power

Vijay Mascarenhas

In its 2002 National Security Strategy for the United States, as well as other public proclamations, and in Operations Enduring and Iraqi Freedom, the Bush Administration has revolutionized US military policy. The heart of this revolution has been a loosening of long-established rules governing the first use of arms. The ban has been lifted in three circumstances: pre-emptive attack, preventive war, and humanitarian intervention, particularly of the sort that requires regime change and nation building. This new permissiveness with regard to first use of arms is at variance with previous US military and foreign policy, customary and conventional international law, as well as most prevalent forms of Just War Theory.

The argument in favor of such radical adjustments is clear enough. September 11th changed the world. Or, to be more precise, September 11th made us brutally, abruptly, unmistakably aware that the geopolitical structure of the world had already changed, and changed in a way that made some aspects of international law and the Just War Theory obsolete. The two greatest geopolitical changes invoked to argue for a more permissive stance towards pre-emptive, preventive and humanitarian interventions both stem from the end of the Cold War.[1] One, as the National Security Strategy puts it, is that “new deadly challenges have emerged from rogue states and terrorists which make today’s security environment more complex and dangerous.”[2] While this might initially seem unrelated to the dissolution of the Soviet Union and the end of the Cold War, one need only think of the likelihood, had the Soviets been successful in installing and protecting a client regime in Afghanistan, of a rogue terrorist being able to use that territory for the planning and training of a terrorist attack on the United States of the magnitude of 9/11. Under the Cold War balance of power, both sides had an interest in keeping client states in line. The second major geopolitical change brought about by the end of the cold war is that the United States now enjoys unprecedented and unchallenged military predominance throughout the world. Though the NSS repeatedly speaks of the creation and promotion of a “balance of power that favors human freedom,”[3] the unmistakable note of triumphalism makes it clear that what it really means is an imbalance of power, one in which, “The United States enjoys a position of unparalleled military strength”[4] as well as “unprecedented—and unequaled—strength and influence in the world.”[5] This hegemonic position within the imbalance of power, the NSS continues, “comes with unparalleled responsibilities, obligations, and opportunity”[6]: the responsibility and obligation, presumably, to enforce international law and justice, up to and including uninvited humanitarian interventions; the opportunity, presumably, to strengthen the national security of the United States by engaging in pre-emptive and preventive wars against “gathering threats” to ourselves, our allies, or regional stability. In the past, such first-use-of-arms operations may have been unjust and unwise because they risked escalation and military opposition backed by the Soviet Union. Now, it is argued, the US has a freer hand and the opportunity—perhaps even the obligation—to act, even if such action is aggressive.

Let us now turn to the first and easiest case of first-use-of-arms: pre-emptive war. Non-interventionists argue that existing international law, most notably the Article 2 of the UN Charter, which prohibits “the threat or use of force against the territorial integrity or political independence of any state,”[7] includes pre-emptive or anticipatory attack in the prohibition. This restrictivist reading finds support in the very purposes of the UN, one of which, as stated in the preamble to the Charter was “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”[8] Key here was the recent memory of the World Wars. The first showed the folly of anticipatory attacks, especially in a system of a rigid balance of power based on alliances. The second showed that war could be the kind of hell that General Sherman had not yet imagined. These memories were also still vivid when the Nuremberg Tribunal established the existence of a “crime against peace” based on the reasoning that “war is essentially an evil thing” and that “to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”[9] Lastly, a natural reading of Article 51 endorsing the use of force in self-defense would seem to restrict it to self-defense in response to an actual armed attack. Philosophers would of course quibble that the text reads “if” and not “only if,” but that strikes me as a pedantic interpretation, since, were the “if-clause” not meant to be restrictive, its existence would serve no purpose at all.[10]

However, other scholars of international law prefer a more expansive reading that would allow for anticipatory self-defense. The appeal here is to natural law, jus cogens, and customary international law. As Sir Humphrey Waldock noted: “It would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first, and perhaps fatal, blow… To read Article 51 otherwise is to protect the aggressor's right to the first strike.”[11] And when it comes to Just War tradition, anticipatory self-defense is well grounded. The analogy with an individual’s right to self-defense is here illustrative. One does not have to wait until a pointed gun is fired or a cocked fist thrown before one is entitled to take preventive, even if violent, action in one’s own defense. Social Contract theory would also advocate for anticipatory self-defense in that 1) no nation would sign an international social contract that did not allow it to take any measure necessary to ensure its political life against aggression from another nation 2) all reasonable nations would allow other nations to have this right. Even if the UN Charter were, as Douglas Lackey and others think it actually is, perfectly clear in declaring anticipatory self-defense illegal, there would still be appeal to customary international law and natural law for justification.[12]

In any case, the NSS’s change in foreign and military policy does not pertain to pre-emptive or anticipatory attacks, but rather to preventive war. The distinction here is one of immediacy in time and clarity of threat. Many different criteria for pre-emptive attacks have been proffered, but all concern time and threat. The most restrictive in terms of time would be those spelled out by Daniel Webster after the Caroline incident in which the British had claimed the right of pre-emptive attack. A legitimate attack, he wrote, would “need show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”[13] This last phrase, “no moment of deliberation” suggests the utmost imminence of the anticipated attack. Historian Paul Schroeder suggests similar criteria, but stresses the nature of the threat as well as its timing. Among his proposed criteria are the following:

(a) clear and imminent, such that prompt action is required to meet it;

(b) direct, that is, threatening the party initiating the conflict in specific concrete ways, thus entitling that party to act pre-emptively;

(c) critical, in the sense that the vital interests of the initiating party face unacceptable harm and danger.[14]

The third criterion here acknowledges that what a state is threatened with matters as much as how and when the injury threatened is expected to occur: only grave threats that pose unacceptable harm justify pre-emption. And the first criterion adds clarity to imminence: it must be clear what a nation is threatened with.

In Just and Unjust Wars, Michael Walzer lays out what is perhaps the most vague and permissive version of the criteria for anticipatory attack. “The line between legitimate and illegitimate first strikes,” he writes, “is not going to be drawn at the point of imminent attack but at the point of sufficient threat” where “sufficient threat” means three things: “manifest intent to injure, a degree of active preparation that makes that intent a positive danger, and a general situation in which waiting, or doing nothing greatly magnifies the risk.”[15] But even though this more permissive stance does not require imminence, it does requires nearness in time and not only that but a determinate nearness in time.

Pre-emptive wars are therefore clearly distinguishable from preventive ones. For a preventive war is directed against a threat that, however grave, is neither clear in intent, nor near in time. In fact, preventive wars as contemplated in the NSS are directed at instances in which what we are threatened with is necessarily unspecified, the intent to threaten us is necessarily improvable, and the time when we are threatened is necessarily some indeterminate point between now and the whenever it is that the foreseeable future ceases to be foreseeable. The argument for this sea change in military policy is that the collapse of the Cold War balance of power has greatly increased the chance that the two new threats identified—rogue states bent on acquiring weapons of mass destruction and terrorists—might combine in a way that renders the passage from identifiable “sufficient threat” to an actual mushroom cloud or small pox epidemic undetectable and hence unstoppable. Thus the NSS concludes, “The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack,”[16] and announces that, “As a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed.”[17] In essence, then, the new doctrine advocates that we have both the opportunity and responsibility to pre-empt the need for pre-emption, or act unilaterally and unprovoked, not against a threat, but against the threat of a threat.

Such preventive wars are clearly illegal according to both customary and codified international law. But are they necessarily immoral according to Just War Theory? In his paper, “Redefining Just War Criteria in the Post 9/11 World and the Moral Consequences of Pre-emptive Strikes” given two years ago at this conference, MAJ Richard Anderson argued that they indeed were immoral, noting, “Although there may be many pragmatic arguments for the doctrine of preventive war, virtually every variation of JWT has traditionally condemned such doctrines, labeling nations that engage in preventive wars as aggressors themselves.”[18] Anderson finds the injustice of preventive wars in the violation of inalienable human rights. Thus he says: “In any preventive war, the attacking country necessarily violates the rights of the defending country, since the attack comes before the defender has actually materially threatened anyone.  In this case, the threat merely perceived or imagined by the aggressor provides the catalyst for military action, instead of sufficient threats by one nation against another.”[19] I should note MAJ Anderson’s prescience, here, since he spoke of a threat “merely perceived or imagined,” months before it became evident that the Iraq had no weapons of mass destruction with which it could have threatened us and that the “catalyst for military action” had indeed proved to be a threat merely perceived.

But I would also think that, if preventive wars are unjust they are unjust, even if not based on faulty intelligence, and, if this is so, there must be deeper moral basis to the injustice than the one Anderson mentions. For we still must ask why a preventive war against a genuine threat would be unjust. Anderson deepens his analysis by referring to inalienable human rights which belong to all people “regardless of what country they live in, or what type of political system they happen to be part of”[20] and claims that no person’s life should be sacrificed for the greater good of others, which he presumes is the real argument for preventive wars. But, I would maintain that, historically, the “pragmatic arguments” for preventive wars were grounded in the policy of maintaining a balance of power and that this policy itself was grounded not merely on the utilitarian grounds that a small war may prevent a greater one, but also, an perhaps even primarily, on the rights-based grounds that the balance of power tends toward the preservation of liberty—liberty not of individuals, but of peoples and political entities. As Edmund Burke observed, the balance of power “invented to preserve the general peace as well as freedom of Europe… has only preserved its liberty.”[21] The liberty he speaks of is, presumably, not the freedom of Europe itself from foreign domination, nor the freedom of individual citizens within European states, but that of the states themselves,[22] especially the smaller ones, from domination by a “universal monarchy” of the type, which the Hapsburgs had threatened to become in the 16th Century. The concept of preventive war in order to ensure the rights of states within the international sphere goes right back to Polybius who, in praising the King of Syracuse for unilaterally abrogating his treaty with the Romans in order to come to the aid of almost defeated Carthage, writes: “In this he reasoned very wisely and sensibly, for such matters should never be neglected, and we should never contribute to the attainment by one state of a power so preponderant, that none dare dispute with it even for their acknowledged rights.”[23] A pax romana enforced by such a preponderant power might indeed have utilitarian considerations on its side, but a peace not founded on justice and respect for the “acknowledged rights” of peoples was not deemed worth preserving.

But here consideration of the arguments—at once pragmatic and rights-based—for preventive wars at once shows us, paradoxically, a deeper moral argument against such wars. The balance of powers was considered a “just equilibrium” precisely because it established an international political order in which, to a point, states were accorded equal, acknowledged, and enforceable rights. Regardless of whatever utilitarian benefit it might have in maintaining peace, a system of international relations not based upon the fundamental respect for the equal rights of states has always been deemed unjust and therefore not worth of preservation by preventive war. This equality of states is the basis of Article 2 of the UN Charter, which holds both the principle of sovereign equality of all its member states as well as the principle of nonaggression and nonintervention. The prohibition of first use of arms in preventive wars is, then, grounded upon the formal equality of states in international law and this equality is in turn grounded upon reciprocity as found in Kantian universalist ethics and Social Contract theory. From a Kantian perspective, a right acceded to one state must be such that it could be universalized to all states. From a Social Contract perspective, no state would freely accede any rights to another state that were not accorded to it. Legal scholar, Michael Byers notes that the principle of reciprocity is the bedrock of international law and then says: “If the principle of reciprocity ensures that any state claiming a right under general customary international law accords that same right to every other state, states will only claim rights which they are prepared to see generalized.”[24] So the essential question is whether the United States is willing, or even could be willing, to see its presumed right of launching preventive wars against threats that have not yet fully formed universalized to all states. The answer is clearly not. As Schroeder notes, “we cannot want a world that operates on this principle, and therefore we cannot really want to use it ourselves.”[25] And, of course, we cannot want a world that operates on this principle because it would justify many past wars generally considered to have been unjust and would justify future wars—South Korea preventatively attacking North Korea, or India attacking Pakistan, etc.—not to mention that it probably would have justified Iraq attacking us in the months before Operation Iraqi Freedom or Iran or North Korea attacking us now.

Though the NSS does not explicitly deny that the right of preventive war be extended to other nations—after all, such a frank denial of reciprocity would be rather undiplomatic—it does seem to me that it assumes the unprecedented and unique military and economic predominance of the United States brings with it unprecedented and unique rights and obligations. In Schroeder’s words this policy effectively “declares that there is one law for the United States and other states of which it approves, and another law for all the rest. It is Orwellian: all states are equal, but some, especially the United States, are vastly more equal than others.”[26] This “negation of the fundamental principle of the juridical equality and coordinate status of all recognized states within the international system”[27] clearly renders the policy of preventive wars immoral under Just War Theory as well and international law since it violates the Kantian and Social Contract Theories upon which they are, in part, based. But Schroeder’s concern is more utilitarian. It is not merely that we would not want the right to preventive war to be extended to all nations; the adoption of NSS policy might in fact foster the actual claiming of those rights, jeopardizing stability around the world. Moreover, Schroeder cautions that in the face of such a proclamation “There is no state, allied, friendly, neutral, or hostile, that will not note this implication, and fear it.”[28]

If US-led preventive wars are perceived as unjust by most of the world—as indeed the current conflict in Iraq is[29]—then such perceptions inevitably breed fear and resentment. But, one may, ask, why should we care? The traditional argument for preventive wars in the service of a balance of powers was, it must be remembered, aimed precisely to prevent the ascendancy of any one state to such unparalleled might that it would no longer feel compelled to abide by the norms of international law. But it is too late for that. The US is now, in the words of Paul Kennedy, “a hegemonic single power that bestrides the world like a colossus,”[30] and one whose military predominance will remain unchallenged for the foreseeable future. We are now in the position where we can, and to a significant extent already have, withdrawn from foreign entanglements, not, of course, to an isolationist position, but to a unilateralist one. The US is thus in a situation analogous to that of Gyges in Plato’s Republic, the mythological Greek whose invisibility gave him unsurpassed and unchallenged power over his fellow human beings. No one in Gyges hegemonic position, it is argued, would sign on to the social contract that establishes the reciprocal rights and obligations of citizens to each other. Plato’s ultimate response to the argument that would give Gyges license to commit injustice unto others is that such injustice would lead to a kind of corruption of his own soul. And I think there is something analogous in the realm of current US foreign policy objectives. Paramount among these must remain a commitment to the core values of freedom, democracy, and respect for human rights, at home and abroad. The NSS itself reaffirms this commitment, cautioning that “In the twenty-first century, only nations that share a commitment to protecting basic human rights and guaranteeing political and economic freedom will be able to unleash the potential of their people and assure their future prosperity”[31] and affirms that “These values of freedom are right and true for every person, in every society—and the duty of protecting these values against their enemies is the common calling of freedom-loving people across the globe and across the ages.”[32] This accords with the overall claim of the document that a “balance of power favoring freedom” should be the overarching goal of US strategic policy and that preservation and extension of this balance of power justifies preventive wars. But if my analysis is correct, the means here contradict the ends. If the end is respect for the rights and freedoms of all people, regardless of citizenship, then a military policy based on the presumption of special rights contradicts the very end to which it is supposed to be the means.

But there is another reason why we should care about the fear and resentment that the NSS’s policy concerning preventive wars has bred: the policy condoning preventive wars may reduce the effectiveness of the US military forces in justified humanitarian interventions. While un-invited humanitarian intervention may contravene existing international law, it has been long justified by customary international law as well as many variants of Just War Theory. Both Lackey and Walzer, for example, feel that India had a right—in fact, an obligation—to invade East Pakistan on humanitarian grounds. Tanzania’s ousting of Idi Amin’s regime and Vietnam’s occupation of Cambodia also have widespread approval amongst Just War Theorists.[33] The justification of such interventions has a long history. According to Grotius, “war is undertaken for the sake of peace” and peace is the “proper end” of war.[34] But Grotius calls peace itself a kind of unity,[35] a unity which, I argue, must be anchored in justice, both in the manner in which states treat other states and in the manner in which they treat their own citizens. The former precludes preventive wars. The latter may require humanitarian wars. International law as well as the UN itself has been increasingly moving in the direction of enforcement of human rights through military intervention. In 1992, UN Secretary-General Kofi Annan remarked: “It is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity.”[36] He then specified two or three situations, depending on how you count them, where humanitarian crises would require military intervention: “Mass slaughter and launching systematic campaigns of decimation or forced exodus of civilian populations.”[37] Walzer famously sets out another, rather more vague, criterion: humanitarian interventions are justified in response to acts that “shock the moral conscience of mankind.”[38] In other places, however, he is, thankfully, more precise. What guides his principles there seems to be the idea that the rights of states are derivative from the rights of the individuals within those states. States that fail to preserve these rights are targets for humanitarian intervention. The failure, however, must be abject, so severe that the most basic rights of preservation of life and security are abrogated either because the state has collapsed (as in Liberia, Afghanistan, Somalia, etc.) or because the state itself perpetrates or colludes in the perpetration of crimes against the humanity of its own people (as in Cambodia, Rwanda, etc. and perhaps at present in the Sudan). For Walzer this means that the violation of rights must be so severe that “talk of community or self-determination or ‘arduous struggle’ [of self-liberation] seems cynical and irrelevant.”[39] The scenarios mentioned by Annan would meet this criterion, as would the ones Walzer himself mentions: enslavement, massacre, politically induced famine or epidemic.[40] The argument here is that such gross injustices, even when not perpetrated through acts of war, create such a disunity of mankind that there is no real sovereignty over the territory in which such abuses occur and, in fact, no state of peace which a military intervention would shatter.[41]

Such cases where humanitarian intervention is not only permissible but obligatory will undoubtedly arise and some of these may involve the kind of intervention where a liberal democratic government, or some thing as close to it as possible, would have to be created in the aftermath of the intervention. These would be long-term national building humanitarian interventions. Given the predominance of American military might that gives the US the status of being, as Madeleine Albright put it, “the indispensable nation” it is hard to imagine that a large scale, complex, sustained humanitarian intervention could occur without the disproportionate involvement of US armed forces.[42] The fear and resentment that the policy of preventive wars generates, however, might well undermine our ability to engage successfully in humanitarian interventions. One need only imagine the likely reception of any US-led coalition of armed forces should humanitarian intervention be required in Dafour. A terrorist insurgency would likely emerge overnight. While it is true that there have always been and always will be those who resent, fear, and hate the United States,[43] it cannot be denied that the present unilateralist approach of US military and foreign policy, especially the conflict in Iraq, has increased this fear and resentment to the point that it would very likely hamper the effectiveness of US armed forces in humanitarian interventions.[44] The assumption of a right to preventive war upon the grounds of the unparalleled opportunities accorded to the world’s dominant military power may well, then, undermine our ability to carry out the unparalleled responsibilities and obligations that also come with our geopolitical dominance.

The imbalance of power also affects the question of whether the US has the right or obligation to conduct humanitarian interventions in the absence of sanction by the Security Council. In opening the door to the first use of arms in humanitarian interventions, Annan was careful not to open it so wide that “defense of human rights becomes a platform for encroaching on the essential domestic jurisdiction of States” which he says, would lead to anarchy in international affairs. To prevent this Annan suggests three caveats: 1) the law of humanitarian intervention cannot be selectively applied; 2) the intervention must be proportional and necessary; 3) “any international action for protecting human rights must be based on a decision taken in accordance with the Charter of the United Nations… it must not be a unilateral act.” It would seem to me, however, that if a state descends to such a level of brutality that it warrants humanitarian intervention on the basis of a Security Council resolution, then it should also warrant it, morally, if not legally, without it. While the end of the Cold War gives the hope that the Security Council will be able to act more effectively in combating humanitarian crises, Annan’s own admission of the stark failure of the UN to prevent atrocities indicates, that that hope remains only a hope.[45] We cannot expect that all cases that genuinely warrant humanitarian intervention will receive sanction from the Security Council. Should then the US act unilaterally or in a US-led coalition in such situations? My answer is a qualified yes. Yes, because we have already done so, and done so justifiably, most notably in Operation Allied Force during the humanitarian crisis in Kosovo; qualified, because while there was no explicit UN sanction of the operation, the coalition was perceived as being broadly constituted, as having a sound moral basis in customary international law, and, importantly, sanctioned by world opinion, which I believe, however vague the notion, proved a significant factor in success of the operation. There was resistance to Allied forces in Kosovo,[46] as there was in Bosnia, but such resistance never coalesced and remained relatively minor. This, in no small part, I believe, was due to the fact that armed forces were admitted to be carrying out the will of the world, one could, say, rather than the will of the United States or of any particular nation.[47]

There is another reason why humanitarian intervention needs to be sanctioned by the UN or world opinion and be carried out by a broad-based coalition. The emergence of terrorism as a geopolitical concern also introduces a new factor for Just War Theory that has not yet been, in my estimation, given due consideration. This new factor is humiliation. Humiliation has long been part of war, but I think its importance in recent conflicts, most notably in Iraq, has grown proportionately greater, in part, because more advanced military technologies as well as closer adherence to the strictures of jus in bello has reduced the number of traditional civilian casualties. I would argue, however, that humiliation itself be considered a kind of casualty. Spinoza defines humility as “a pain arising from a man's contemplation of his own weakness of body or mind.” Humiliation would then be a pain arising from a person’s contemplation of his or her own weakness produced by another person. Although psychological rather than physical, it is an injury nonetheless, a suffering and pain that should be taken into account as part of the evils of war in both jus ad bellum and jus in bello theory, if only for the reason that, in cases of occupations, humiliation is at least as effective a spur to insurgency and resistance as traditional forms of collateral damage. The problem is that any operation that necessitates nation building and a prolonged engagement will likely need to combat terrorist insurgencies with actions that are bound to humiliate the local population. Referring to Roger Trinquier’s Modern Warfare: A French View of Counterinsurgency, Robert Tomes, in his article, “Relearning Counterinsurgency,” recommends the implementation of:

an organizational structure to wage this counter-guerrilla campaign and elaborates a "gridding" system that divides territory into sectors in which methods are applied to sweep them clear of subversive elements. Again, the use of a census is important, as is the recording of vehicles, animals, and any other assets that may be exploited by the antigovernment forces. During these operations entire towns are to be detained and interrogated…[48]

Tomes then admits that such intrusive counterinsurgency efforts “should yield valuable intelligence but may also alienate the population.” Due to the humiliation of the population, tactics implemented in order to neutralize some insurgents may well create new ones. The problem is that the tactics are necessary, the humiliation unavoidable. The extent to which the collateral damage of humiliation can be reduced by softer, less humiliating tactics is, therefore, limited.

If, then, the humiliation caused by the machinery of counterinsurgency cannot be reduced beyond a certain level, the next best thing is to minimize the harmful effects of the humiliation; and the best way to achieve this, I would say, is to accompany it with shame. One way to do this is to make sure that US forces that would likely constitute a disproportionate component in a humanitarian intervention would, nonetheless, remain merely a component. Speaking of coalitions, Walzer writes, “What one looks for in numbers is detachment from a particularist views and consensus on moral rules. And for that, there is at present no institutional appeal; one appeals to humanity as a whole.”[49] Humanitarian interventions, then, would mostly likely be successful only if there is broad international consensus that the moral rules warrant that intervention and only if there is an appeal to humanity as whole. The reason being that one can be shamed but not humiliated by the will of humanity as a whole. The shame that accompanied the humiliation of defeat and occupation in post-war Japan and Germany is no doubt one of the reasons why resistance to the occupations was minimal. The broader the base of a coalition and the more clear the sanction of world opinion, the less the collateral damage of humiliation.

I therefore conclude that much of the policy changes recommended by the NSS and carried out in Operations Enduring Freedom and Iraqi freedom and possible future engagements, is contrary to customary and codified international law, contravenes Just War Theory, and may lead to increasing instability. While genuinely pre-emptive attacks rest on sound moral and political judgments, first use of arms in preventive wars cannot be justified and, in fact, will undermine our ability to engage in humanitarian interventions, even where the US would be morally obligated to do so. I also conclude that the imbalance of power paradoxically restricts the conditions under which the United States can justly and effectively intervene in humanitarian crises and suggest that those conditions be the following: 1) where the abuse of rights and injustice reaches the level at which peace itself cannot be said to exist; 2) where such intervention is sanctioned by the Security Council, or, failing that, by the clear approval of world opinion; 3) where US armed forces constitute only a component, even if an indispensable one, of a broadly-based international coalition.

NOTES

---

[1] Thus the National Security Strategy (NSS) notes: “With the collapse of the Soviet Union and the end of the Cold War, our security environment has undergone profound transformation” (National Security Council, The National Security Strategy of the United States, The White House: September 2002, p.13).

[2] NSS, p. 13.

[3] NSS, p. iv.

[4] NSS, p. iv.

[5] NSS, p. 1.

[6] NSS, p. 1.

[7] Charter of the United Nations, Chapter 1, Article 2, 4.

[8] Charter of the United Nations, Preamble.

[9] Nuremberg Trial Proceedings, vol. 22, 217th Day, 31 August 1946.

[10] The Article reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

[11] Quoted in Richard Maxon, “Nature’s Eldest Law: A Survey of a Nation’s Right to Act in Self-Defense,” Parameters, Autumn 1995, p. 59.

[12] I think the real issue here in the controversy over interpretation of current international law is not so much the underlying morality of the act, but rather whether in this case, since it is so subject to abuse, we have a fairly firmly established moral principle that it would nonetheless be imprudent to codify into actual law. After all, the best arguments against anticipatory attack have less to do with the moral principles involved than with the possibility of their application in specific instances, i.e., the question is whether it is ever possible to genuinely know a pre-emptable attack is about to occur.

[13] Daniel Webster, The Works of Daniel Webster, Vol. VI (Boston: Little Brown, Co. 1854), p. 261.

[14] Paul Schroeder, “Iraq: The Case Against Preemptive War,” The American Conservative, October 21st, 2002.

[15] Michael Walzer, “Just and Unjust Wars: A Moral Argument with Historical Illustrations,” (Basic Books, 1977), p. 81.

[16] NSS, p. 15.

[17] NSS, p. v.

[18] CAPT Richard C. Anderson, USMA, “Redefining Just War Criteria in the Post 9-11 World and the Moral Consequences of Preemptive Strikes,” JSCOPE 2003, available at http://www.usafa.edu/isme/JSCOPE03/Anderson03.html.

[19] Ibid.

[20] Ibid.

[21] Quoted in Michael Walzer, Just and Unjust Wars (Basic Books, 1977), p. 76.

[22] By “states” of course, I do not mean modern nation states but the political entities of the time.

[23] Polybius, Histories (Loeb Classical Library), 1. 1. 83.

[24] Michael Byers, “Reciprocity and the Making of International Environmental Law,” available at http://www.law.duke.edu/news/papers/StrategyandPersuasion.pdf

[25] Paul Schroeder, “Iraq: The Case Against Preemptive War,” The American Conservative, available at http://www.amconmag.com/10_21/iraq.html

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] This unpopularity extends even to the populations of many of those countries still in the coalition.

[30] Paul Kennedy, “The Conundrum of American Power in Today’s Fragmented World,” Lady Margaret Lecture, Christ’s College, Cambridge, November 2002, available at http://www.yale.edu/iss/LadyMargaretLectureNotes-PaulKennedy.pdf

[31] NSS, p. iii.

[32] NSS, p. iii.

[33] Though the latter might not be considered first use of arms, given Cambodian raids into Vietnamese territory, wholesale occupation of the country would seem out of proportion and could be justified only upon humanitarian grounds.

[34] Hugo Grotius, On the Law of War and Peace (London, 1814), 1.1.1.

[35] Ibid. 1.1.2.

[36] Secretary General of the United Nations Report on the Work of the Organization, UN Document A/46/1, September 1991.

[37] Ibid.

[38] Michael Walzer, Just and Unjust Wars (Basic Books, 1977), p. 107.

[39] Ibid., p. 90.

[40] Ibid., p. xviii.

[41] Thus the General Secretary bases his justification of humanitarian intervention on the thesis that “the heightened international interest in universalizing a regime of human rights… [is] not so much a new departure as a more focused awareness of one of the requirements of peace.”

[42] The NSS agrees with this assessment, noting that the “unprecedented—and unequaled—strength and influence” of the United States in world affairs brings with it responsibilities and obligations as well as opportunities.

[43] The armed forces engaged in Operation Restore Hope in Somalia met with fierce resistance

[44] See Final Report of The Defense Science Board Task Force on Strategic Communication.

[45] Secretary General of the United Nations Report on the Work of the Organization, UN Document A/46/1, September 1991.

[46] Here, I am referring to the IFOR and SFOR armed forces used for peace keeping and not to those involved with Operation Allied Force.

[47] And, of course, because the presence of foreign armed forces had by that time gained the sanction of the UN.

[48] Parameters, Spring 2004, p. 19.

[49] Michael Walzer, Just and Unjust Wars (Basic Books, 1977), p. 107.