Redefining Just War Criteria in the Post 9-11 World

Redefining Just War Criteria in the Post 9/11 World

and the Moral Consequences of Preemptive Strikes

MAJ Richard C. Anderson

United States Military Academy, January 24th, 2003

The terrorist attacks on 9/11 truly awakened the United States to the harsh realities of the new millennium. Ever since the attacks, American politicians have suggested that our “war on terrorism” is a new type of war, presenting unique threats and unparalleled challenges. In response to these challenges, many have suggested that we should redefine the criteria used to justify the use of military force. Politicians are reconsidering the doctrines of deterrence and containment, while “preemption” has become the new buzzword describing our proposed tactics for engaging terrorist threats. Our preference for an active defense is surely warranted; however, the current administration’s proposed use preemptive strikes seems to blur the line between legitimate and illegitimate first strikes. In this essay, I will examine recent Just War Theory (JWT) perspectives regarding preemptive strikes, preventive war, and the moral legitimacy of the United States’ demand for regime-change in Iraq. I will focus primarily on Walzer’s account of JWT, which is based on the principle of inalienable human rights. Even though our enemy has demonstrated a willingness to engage in terrorist actions, I will argue that the war on terrorism, including a war with Iraq, must be fought within the constraints of JWT in order for the United States to maintain its legitimacy as the standard-bearer of international law.

In the post 9/11 world, almost every public appearance by an administration official provides an opportunity to present new policy initiatives. While delivering the commencement address to the 2002 graduates of West Point, President Bush made the case for significant changes in United States foreign policy; not only in how we perceive our enemies, but also in how we will react to the threats they impose. President Bush went on to clarify these changes:

For much of the last century, America’s defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence—the promise of massive retaliation against nations—means nothing against shadowy terrorist networks with no nation or citizens to defend. Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies.[1]

In response to these “new threats,” President Bush proposed a dynamic shift in our strategic mission to maintain the peace and security for our nation:

We cannot defend America and our friends by hoping for the best. We cannot put our faith in the word of tyrants, who solemnly sign non-proliferation treaties, and then systematically break them. If we wait for threats to fully materialize, we will have waited too long.

Homeland defense and missile defense are part of stronger security, and they’re essential priorities for America. Yet the war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action. And this nation will act.[2]

President Bush’s remarks that day were more than just encouraging words to the newest batch of U.S. Army junior leaders. The remarks signaled a dynamic change in our nation’s traditional stance regarding preemption and the justified use of force, while also displaying our newfound distrust in diplomatic solutions for the problems that the world’s tyrannical regimes present to our nation.

As a confirmation of this new stance regarding preemption, Vice President Cheney recalled the words of Henry Kissinger in a moving speech to the VFW’s National Convention in August of 2002:

‘The imminence of proliferation of weapons of mass destruction, the huge dangers it involves, the rejection of a viable inspection system, and the demonstrated hostility of Saddam Hussein combine to produce an imperative for preemptive action.’[3] If the United States could have preempted 9/11, we would have, no question. Should we be able to prevent another, much more devastating attack, we will, no question. This nation will not live at the mercy of terrorists or terror regimes.[4]

While the Vice President’s statement may seem reasonable in post 9/11 America, in many countries around the world his remarks are ill received. Given the unforeseen destruction resulting from the terrorists’ actions, a preemptive strike against Al Qaeda prior to the 9/11 attacks would certainly have seemed warranted. Yet, the notion of striking first, before a threat actually materializes, seems to contradict the accepted tenets of JWT. Prior to 9-11, America seemed committed to the JWT motto, “nothing but aggression can justify war,”[5] since it had not landed the first blow in any recent major conflict. However, the current preference for preemptive action against Iraq indicates a willingness to deviate from the motto.

Is such a willingness to deviate really warranted? Has the world changed so radically that our policies of deterrence and containment have outlived their usefulness? Clearly, the terrorist actions on 9/11 yielded unprecedented destruction, while also exposing the inherent weakness of our national air-travel system and our vulnerability to clandestine operations within our open society. Nevertheless, although the tactics of terrorist organizations surely present new challenges for our nation’s security establishment, these actions do not seem to warrant the forsaking of our traditional predisposition towards restraint when considering the use of force in the international arena. The doctrines of deterrence, containment, and military restraint have enabled the United States to maintain the moral high ground during most of our military conflicts throughout the 20^th century. These doctrines were shaped by our nation embracing the tenets of JWT, and our respect for the international society of states made manifest by the creation of the United Nations from the ashes of WWII.

There are many theories prescribing the conditions that must be met before any use of force by one nation against another is justified. In his seminal work, Just and Unjust Wars, Michael Walzer argues for a comprehensive JWT based upon the inalienable rights of individuals (or human rights) and how those rights should affect our judgments regarding jus ad bellum (justice of war) and jus in bello (justice in war). His theory is unique, in that it gives no mention to the traditional JWT criteria of just cause, proper authority, right intention, reasonable chance of success, proportionality of ends, and last resort. Instead, Walzer proposes that the recognition of inalienable human rights yields a comprehensive theory to shape our moral judgments regarding war.

According to Walzer, the rights of individual states are derived from their representative nature resulting from the “coming together” of a people within any given territory.[6] Since every person is endowed with the inalienable rights of life and liberty, states are formed to protect and represent citizens’ rights in the world community. In this sense, the rights of any state are derived from the recognition of the individual citizens’ rights that the state represents. This distinction forms the basis for Walzer’s “Legalist Paradigm,” which recognizes the inherent rights of individual states to their own territorial integrity and political sovereignty.

When the rights of a state are violated, we call it an act of “aggression.” The state that violates the rights of another is deemed an “aggressor,” guilty of the single “crime of war” that one state can commit against another.[7] Therefore, Walzer’s JWT limits the morally justified use of force primarily to those occasions when an aggressor state violates the rights of another, such as a war of self-defense. However, Walzer realizes that requiring states to wait until they are militarily attacked before they can take action is too restrictive and could even result in the complete destruction of states before they have a chance to defend themselves. He proposes that states need not wait until an enemy attack is imminent, since this would require that states wait until they are actually going to be attacked. Instead, Walzer states that, “The line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat.”[8] Walzer defines “sufficient threats” as those that present a “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.”[9]

By recognizing the moral justification of striking first in the face of imminent attacks and sufficient threats, Walzer clarifies his notion of aggression to include not only actual violations of a state’s rights, but also the threatened violation of those rights. What is crucial for Walzer is that the threats must be manifested through the clear intentions and actions of an aggressor state, not just the potential for action. In this sense, states are justified in protecting the rights of their citizens through preemptive strikes when they know that their rights are in jeopardy, and failure to act would place the territorial integrity or political sovereignty of the state at greater risk.

However, Walzer is very careful not to open the doorway to legitimate first strikes too wide. He clearly admonishes the doctrine of “preventive war,” which attempts to justify fighting earlier rather than later. Preventive wars are usually fought out of fear and distrust of another country, rather than out of defense against aggression. Instead of waiting for threats to actually materialize, states fight preventive wars to engage enemies before they actually obtain the capability for aggressive action.

Generally, states fight preventive wars in order to maintain the “balance of power” that appears threatened by the growing power of a rival state. The arguments for preventive war are rather simple and rely on common utilitarian calculations used to justify the needs of the many over the needs of the few. The proponents of preventive wars suggest that the overall loss of life and destruction of property would be less if they strike earlier, rather than waiting for the threatening country to fully develop its capabilities. 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.

President Bush’s statements regarding preemptive strikes during his West Point address seem to suggest a preference for preventive war rather than preemptive strikes, since the goal of the action he describes aims at engaging threats before they actually emerge. For this reason, the Bush doctrine of preemption would be better understood as a doctrine of prevention, thereby bringing the moral consequences of the doctrine into question. According to Walzer’s JWT, if Iraq or other terrorist organizations pose sufficient threats to our nation, then preemptive strikes would certainly be warranted. However, if the goal is to destroy our enemies before they materially threaten us, then striking first would constitute an act of aggression.

The moral quandary resulting from our proposed use of preventive war stems from the premises underlying Walzer’s JWT. Walzer has provided us with a JWT built upon the premise that all persons possess inalienable human rights. How or why people possess these rights does not really matter to our understanding of the theory. Instead, what matters is that we recognize that all members of society are entitled to the same rights regardless of what country they live in, or what type of political system they happen to be part of. In this sense, the human rights of an American citizen are equal to the human rights of an Iraqi citizen, even though the current political regime in Iraq may not recognize the rights of its citizens.

The recognition of inalienable human rights has tremendous consequences for any JWT, and the United States made this recognition formally in “The National Security Strategy of the United States:”

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…Freedom is the non-negotiable demand for human dignity; the birthright of every person—in every civilization.[10]

Since it has become a matter of the United States’ national security policy that we recognize human rights and dignity, it is even more important that we effectively honor them throughout the world. In order to honor the human rights and dignity of all people, we should not engage in a policy that directly places those rights in jeopardy, which is exactly what the preventive war doctrine does.

The proposed preventive war doctrine of the United States does not cohere with Walzer’s doctrine of human rights because it necessarily places the rights of some people above those of others. For instance, 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. Since the defender against a preventive attack has not sufficiently threatened anyone, the responsibility for the lives lost, and the individual rights violated, falls directly on the aggressor nation. Therefore, if the United States is going to be the champion of human rights and dignity, as our national security policy suggests, it is crucial that we do not violate the rights of others in the process.

Given that all people everywhere possess the same human rights, how active should the United States be in securing and protecting those rights? Recently, many politicians have argued that the threats posed by Saddam Hussein warrant not only preventive war, but also a forced “regime change” due to the current regime’s human rights violations. However, does the quest for universal freedom entail that some people must make the ultimate sacrifice in order to secure the rights of others? Here I am not referring to the sacrifices made by soldiers defending the rights of others; instead, I mean the rights of citizens living in countries ruled by tyrannical regimes. Once again, I turn to the National Security Strategy for guidance on the matter. The policy states that, “The United States should be realistic about its ability to help those who are unwilling or unready to help themselves. Where and when people are ready to do their part, we will be willing to move decisively.”[11]

This readiness to help those who are willing to help themselves is certainly commendable and is very reminiscent of John Stuart Mill’s doctrine of “self-help.”[12] Mill’s doctrine proposed that people essentially get the government that they deserve, and that people living under tyrannical regimes will continue to do so until they were willing to engage in the “arduous struggle” for freedom themselves. What is crucial for the doctrine of self-help is that the rights of citizens to effectively remain oppressed must be respected until they are willing to make the necessary sacrifices themselves. Except in cases of enslavement or massacre (when the notion of arduous struggle would seem impossible), a state’s sovereignty must be respected in order to protect the individual rights of its citizens. Otherwise, any forced liberation would certainly violate both the rights of individual citizens, as well as the rights of the state that oppresses them. Although this may seem somewhat demanding for those oppressed by tyrannical regimes, as well as those who wish to liberate them, it is important to remember that the price of freedom is sometimes very high. Therefore, in order for a people to truly be free, they must take the first steps towards freedom themselves. Once they have taken these steps, any lives lost, or rights violated, will be the result of their own free choice.

By engaging in preventive wars, even if those wars were fought to “liberate” people, the United States would violate the very rights of the people that we are seeking to protect. Given that there are numerous tyrannical regimes around the world, we must restrain ourselves from embarking on a crusade to liberate oppressed peoples, especially if that means deciding their fate for them. As Walzer suggests, “Only domestic tyrants are safe, for it is not our purpose in international society (nor, Mill argues, is it possible) to establish liberal or democratic communities, but only independent ones.”[13] However, once a people have demonstrated their representative nature, and their willingness to fight for their own rights, Walzer argues that we could intervene in their struggle in order to put freedom within their own reach. An example of this is the current “no-fly” zones in Iraq imposed by the United Nations in order to protect the Kurdish people living within Iraqi borders. Even though we have intervened on behalf of the Kurds, we have not fought their battles for them; instead, we have only provided them a safe haven from the threat of Iraqi aggression.

In order for the United States to retain moral clarity, we must remain clear about what constitutes aggression and what does not. The attacks of 9/11 clearly violated the rights of American territorial integrity as well as the individual rights of those lost at the World Trade Center, the Pentagon, and United Airlines flight 93 that crashed in Pennsylvania. According to the vast majority of just war theorists, the American response to this aggressive act was swift and justified. By targeting members of the Al-Qaeda organization and the Taliban government of Afghanistan, which enabled Al-Qaeda’s training, planning, and coordination for the 9-11 attacks, America fought a war of self-defense against an aggressor. Although Al-Qaeda is not a state, the organization qualifies as a viable aggressor due to its organizational structure and its representative nature for the political goals of a radicalized Islamic group. Although the Taliban government did not directly attack the United States, its harboring of Osama bin Laden clearly placed Afghanistan into the position of aiding and abetting an aggressor. Clearly, these actions precipitated the justified use of force against Al-Qaeda and the Taliban. However, now that the Taliban is ineffectual, and Al-Qaeda seems to have lost its foothold in Afghanistan, America has turned its attention toward countries in the “Axis of Evil,” such as Iraq.

The central issue facing the United States today is how we will respond to the various threats of the post 9/11 world. In order to retain the moral advantage, we must not act militarily against merely perceived or imagined threats. This could lead us into wars that should not be fought, against “enemies” that may not deserve the full wrath of the most powerful nation on earth. When I envisioned this essay in September of 2002, the United States was making the case that it would not wait for the world to unite against the threat of Saddam’s tyrannical regime. Instead, the United States had made it clear that it would act preventively to stop Iraq from becoming a larger threat through the proliferation of weapons of mass destruction. The United States clarified this position when it released “The National Security Strategy of the United States” in September of 2002. Within the document, echoes of President Bush’s West Point address were louder than ever:

[A]s a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies’ plans, using the best intelligence and proceeding with deliberation. History will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to safety is the path of action.[14]

With this statement issued as national security strategy, it seemed that the United States was clearly headed towards a preventive war with Iraq.

Even if all of the United States allegations against Iraq were true, which they probably were, there certainly did not seem to be a sufficient threat (by Walzer’s criteria) justifying military action, since there was no clear manifest intent, or active preparation, to injure the United States. Also, it seemed that any threat to the territorial integrity and political sovereignty of the United States was surely minimal. Saddam had certainly violated the human rights of his own citizens, scoffed at the United Nations’ resolutions against his weapons programs, and even used weapons of mass destruction against the Kurds residing within his borders in 1988. However, virtually all of these crimes were committed long before the 9/11 attacks, and well before our newfound conviction against terrorist organizations. As Walzer had pointed out in a recent symposium on the issue of Iraq and Just War:

There was a just and necessary war waiting to be fought back in the 1990s when Saddam was playing hide and seek with the inspectors, and that would have been an internationalist war. It would have been a war of enforcement, and its justice would have derived, first, from the justice of the peace agreement it was enforcing and, second, from its likely outcome, the strengthening of the U.N. and the global legal order.[15]

Walzer’s comments highlighted the central problem with the United States’ justification for preemptive strikes. Since neither the United States nor the United Nations had the conviction to enforce the resolutions restricting Iraq’s development of weapons of mass destruction in 1998 when Iraq kicked out the inspectors, it seems that any legal warrant for a war of law enforcement was lost. Either the United States and the United Nations did not perceive Iraq to be a sufficient threat at the time, or neither party was willing to accept the risks associated with a second Gulf War. By the middle of 2001, both France and Russia and virtually normalized their relations with Iraq, further diminishing the chances of enforcing the resolutions. It was not until after the 9/11 attacks that the United States renewed its commitment towards disarming Iraq, claiming that Iraq posed a significant threat that could no longer be tolerated. However, by failing to react in 1998, the United States seemed to acknowledge that the threat was less than sufficient then, and since Iraq had made no threatening gestures towards the United States or any of its neighbors, the threat seemed even more distant in 2002. Further complicating the situation was the apparent lack of any evidential “smoking gun” to prove that Iraq actually had weapons of mass destruction. Since Iraq had not made any material threats, or demonstrated any manifest intent to injure the United States, any war initiated by the United States would certainly have been preventive in nature, not preemptive. Without a sufficient threat to preempt, there can be no preemptive war.

However, in early November of 2002, with the pressure of the United States ever increasing, the United Nations passed a new resolution to address the situation. Through this act, the United Nations reestablished its legitimacy as a representative body, and the United States gained the moral warrant needed to enforce the resolutions militarily if necessary. The new resolution reestablished an inspection program designed to enforce the United Nations’ sanctions against Iraq that resulted from the ceasefire agreement following the 1991 Gulf War. Should Iraq fail to comply with this new resolution, the United States and her allies will be justified to enforce the resolution militarily, since it will be a matter of international law enforcement, not unilateral preventive war. By adhering to the principles of JWT, and the reestablishment of United Nations resolutions, the United States has maintained the moral high ground. However, the issue of preventive war will present problems for the United States as long as we retain the doctrine of military action in the absence of sufficient threats.

Presently (January 2003), the United States is continuing its military buildup in the Persian Gulf region. Although the United Nations’ inspectors have found some artillery shells capable of carrying chemical payloads, they have yet to prove that Iraq is in material breach of the new resolutions. However, even though the Iraqi threat has not materialized, the United States seems determined to fight a second Gulf War. The commitment to war seems very strong, evidenced by the administration’s various post-Saddam contingency plans circulating through the media.[16] Clearly, Saddam’s days are numbered. However, by applying Walzer’s criteria for a sufficient threat to the current situation in the Persian Gulf, it seems plausible that Iraq may feel justified in striking preemptively. Although this is certainly unpalatable, we should remember that JWT needs to be applied objectively in order to provide clear guidance. Given that we may be providing Iraq with their justification to strike first, we should certainly pause to consider the moral consequences of our actions.

In order to maintain the moral justification for our response to the 9/11 attacks, and the threats of the post 9/11 world, we must remain committed to our pre 9/11 understanding of JWT. Although we should certainly reevaluate our security posture, and our political and economic relationships with certain countries, we should not change our moral perspectives regarding the difference between just and unjust wars. If we maintain that human rights and dignity are universally inalienable, then we cannot violate the rights of some in order to secure the rights of others; nor can we violate the rights of nations before they actually threaten us. Therefore, our JWT is in need of re-affirmation and clarification, not redefinition, if that means changing our judgments on the matter.

NOTES