Reevaluating the Language of War: A Case Against War in Iraq

 

LT Dale Bateman, USCG

Yale Divinity School

 

The world in which we live is in a state of rapid change.  Technology changes faster than we can begin to imagine, even as we see it around us.  The technological milieu in which we live creates similarly rapid change in society.  Some changes are the direct result of a specific technology, while others are less obviously related.  As society changes, so must our language.  Nowhere is this more true than in dealing with issues of war. 

  After September 11, 2001, President Bush stated that the United States was at war with terrorism.  Russia’s President Putin and Israel’s Prime Minister Sharon have used similar language to describe their policies regarding, respectively, Chechnya and the Palestinian crisis.  Subsequent to his declaration, President Bush ordered significant military intervention in Afghanistan, targeting the Taliban and al-Queda.  No formal declaration of war against Afghanistan exists, yet popular conversation describes the activity as the “War in Afghanistan.”  We are currently considering war with Iraq, ostensibly within the larger rubric of the so-called “war on terrorism.”

To decide whether to go to war in Iraq, we ought to begin with an analysis using classic just war theory.  After examining just war theory, we will look at the application of its seven criteria to the current situation in Iraq.  Then we will explore additional criteria using the Coast Guard Use of Force continuum to determine the justness of war in Iraq.  According to classic just war theory, war in Iraq is not justified.  Similarly, the CG use of force continuum does not support war in Iraq.  Ultimately, we can use a combination of just war theory and the use of force continuum to evaluate any potential military action in the war on terrorism.

 

Classic Just War Theory

Although warfare has often been controlled to some degree by a sense of honor among the belligerents, just war theory has its roots in Christian teachings.  Perhaps the first person to articulate clearly a set of criteria for waging a just war was Thomas Aquinas.  Drawing extensively on Augustine, Aquinas lays out three conditions in the Summa Theologiae: 

First the ruler under whom the war is to be fought must have authority to do so.  A private person does not have the right to make war since he can pursue his rights by appealing to his superior.  Secondly, a just cause is required—so that those against whom the war is waged deserve such a response because of some offense on their part.  The third condition that is required on the part of those making the war is a right intention, to achieve some good or avoid some evil.[1]

 

In Aquinas’ day, the ruler clearly had absolute power, whether it was a king or some other local prince.  Representative government was still a long time coming.  The remaining two criteria need a bit more examination.

What exactly constitutes a just cause?  Aquinas suggests that some wrong has to be done by one party to another, and that the wrong is the sort to which armed response is appropriate.  By way of example, Aquinas quotes Augustine in three examples of a just cause.  Writing some 350 years after Aquinas, Johannes Althusius offers seven just causes:

The first cause is the recovery of things taken away through violence by another people.  The second cause is the defense against violence inflicted by another, and the repulsions of it.  The third cause is the necessity for preserving liberty, privileges, rights, peace and tranquility, and for defending true religion.  The fourth cause occurs when a foreign people deny peaceful transit through its province without good reason.  The fifth cause occurs when subjects rise up against their prince and lord, do not fulfill their pledged word, and are not willing to obey him, although they have been admonished many times.  The sixth reason is contumacy, which occurs when any prince, lord, or city has so contemptuously and repeatedly scorned the decisions of courts that justice cannot otherwise be administered and defended.  The seventh just cause of war occurs when agreements are not implemented by the other party, when he does not keep his promises, and when tyranny is practiced upon subjects.[2]

 

These criteria will be important as we consider just war theory in relation to Korea and Iraq. 

The third criterion is perhaps the most difficult to understand, especially in the post-modern world.  It focuses on the end of the war, rather than what has led up to it.  Instead of asking about what action has occurred which might be remedied by war, it asks what the remedy will be in the long term.  The description Aquinas gives of right intention is particularly problematic in a pluralistic society as it uses a distinctly theological language.  Defining good and evil is vitally important to understanding right intention, but is difficult to do in a less homogenous society.  Since Aquinas and Althusius addressed a predominantly Christian community, they assumed Christian values.  Good and evil were terms that could be used with relatively little debate about their meaning.[3]  Today, as we wrestle with the potential of waging war on a non-Christian society, definitions of good and evil are troublesome.

From Aquinas’ initial definition of three criteria, just war theory has been refined so that today we generally recognize seven independent criteria.  They include those that Aquinas described, but add four.  Some of these are logical outgrowths from the original three offered by Aquinas.     

First, the response that includes war must be proportional to the wrong committed by a nation.[4]  Aquinas would certainly have assumed a sense of proportionality.  War is hardly proportional, for example, to the verbal abuse another may heap on us. 

Second, relative justice must be achieved as a result of the war.  Relative justice is among the more difficult criteria to define, though it too grows out of the first three principles that Aquinas used.  Here it is perhaps useful to look at two brief examples.  In World War II, destroying the German war-making capability and toppling the Nazi regime served relative justice.  The German people, and all of Europe, were more free, and better able to live out their lives, even though waging the war against the Nazi government laid waste major portions of Europe.  The short-term disruption caused by the war was less unjust than the possibility of a long-term occupation by the Germans. 

By contrast, U.S. involvement in Viet Nam did not serve relative justice, though we see that most clearly only in hindsight.  The government of Ho Chi Minh was a nationalist one; he wanted to rid Viet Nam of French imperialists.  A U.S. effort to prop up a corrupt and repressive government, in the hopes of forestalling the spread of communism, looks relatively unjust.  This is particularly true since Viet Nam became a communist country, in spite of our efforts, and communism as a world venture subsequently failed, including the demise of the Soviet Union.  The prolonged disruption to the peoples of Viet Nam may be significantly more unjust than the long-term condition of living under a self-determined quasi-communist regime.

Third, war must be waged as a last resort.  That war should be waged as a last resort is self-evident.  Even those who might suborn Clauswitz’s sentiment that war is the continuation of politics by other means as ultimate justification for war would likely concede that all other means of politics ought to be employed to achieve one’s ends before resorting to war.  Though Hitler used threat of war to achieve significant gains prior to September 1939, he refrained from actual war as long as possible.  He invaded Poland only when it became obvious that he would have to wage war to achieve his goals, nefarious as they were.  Those who consider waging a “just” war ought to use every other means possible to achieve their goals before resorting to war.

Fourth, there must be some reasonable hope for success in waging the war.  The final criterion is perhaps the most troubling.  In hindsight, we might say a war ought not to have been fought, because it did not by its failure meet the just war criteria.  In such a case, we would hold up those who argued against the possibility of success as the ones to whom decision makers should have listened.  This comes from the mindset that the futile sacrifice of human lives is inherently unjust.  If we cannot prevail in our armed conflict, then we ought to lay down our arms in order to avoid needlessly shedding blood. 

An example from history helps illuminate this criterion.  The Jews in the Warsaw Ghetto during World War II staged armed opposition to the Germans.  By all accounts, and as history has shown, the Jews had no hope of beating the Germans.  The Jews were outnumbered, out supplied, and out gunned.  The logical end to their struggle was death to all those who fought back.  The alternative, though, was deportation to Nazi death camps, where most of them would meet an equally certain end.  According to this criterion, the Jews should not have “waged war” on the Germans because they had no hope of succeeding. 

Just war theory is not a magic formula by which rulers can decide whether or not to wage war.  It is rather a set of criteria which must be weighed in combination in order to come to a moral determination.  As in the example of the Jews in Warsaw, some of the criteria that argue against going to war feel wrong.  Even so, these criteria do provide a framework for evaluating the justness of war. 

With this basic understanding of just war theory, let us turn to the situation in Iraq.  Using just war theory we will analyze the conflict twice: prior to any U.S. involvement and prior to a potential invasion of Iraq.

 

Iraq: 1990

On August 2, 1990, Iraqi Army units crossed into Kuwait, beginning a conflict that continues today.  Saddam Hussein claimed that he had been invited by an interim government in Kuwait; but in reality, it was a purely hostile act.[5]  According to Hussein, Kuwait ceased to exist that day.  Although the military victory was relatively bloodless, Hussein had, in fact, invaded a sovereign nation, a fellow member of the UN.  Clearly the act was in violation of the UN charter.

Although the U.S. had shown significant indifference to Iraqi threats prior to August, the response after the invasion was unequivocal.  President Bush spoke what much of the nation and world felt: “It’s naked aggression.  It’s good versus evil; we have a clear moral case here; nothing like this since World War II; nothing of this moral importance since World War II.”[6]  Once again, the U.S. turned to the UN before responding.  On the evening of August 2, the Security Council approved a resolution calling for the immediate withdrawal of Iraqi troops from Kuwait.  The vote was 14-0 in support, including the Soviet Union (Yemen chose to abstain).[7]

The coalition of nations which arrayed itself against Saddam Hussein’s Iraq was impressive in its size and diversity.  Significant Arab support allowed a massive buildup of western troops.  Near the end of 1990, nearly one million troops faced each other across the Saudi Arabian border.  A UN resolution at the end of November gave Hussein six weeks to withdraw or face significant consequences.[8]  On January 16, 1991, an air war was begun the likes of which the world had never seen.  The Iraqi military was pummeled.  After giving Hussein one more opportunity to withdraw from Kuwait, President Bush ordered a ground assault to begin February 23, 1991.  Four days later, after Iraqi forces had completely collapsed, Bush ordered a cease fire.  The war had ended with the Iraqis fleeing from Kuwait.  Order had been restored; Kuwait was free.

Let us briefly look at just war criteria relating to the U.S. response to Iraq in 1990.  First, competent authority entered into war.  President Bush sought both UN and Congressional support before engaging in any belligerent activity.  Within the scope of the UN Charter, only the Security Council has the authority to wage war.  Second, there was just cause to go to war with Iraq.  Although the issue of third party action remains unanswered, we can probably add bellicose violation of the UN Charter to Althusius’ list of just causes.  Third, the UN coalition had right intention in waging war on Iraq; they sought to restore the sovereignty of Kuwait.  Fourth, the response was proportional.  The manner in which Iraq violated Kuwait was so egregious that even the massive aerial assault on Iraqi troops seems mild in comparison.[9]  Fifth, the actions of the coalition sought to achieve relative justice.  Although Bush and others would have liked Hussein to be removed from power and made to pay for his crimes against the world—actions against his own people, starting a bloody war with Iran—the goal of the action in January and February, 1991 was to specifically punish Hussein for invading Kuwait and to restore Kuwait to its rightful place in the company of nations.  Sixth, war was the last resort.  Iraq was given ample opportunity to leave Kuwait before war began.  Political and economic pressure were applied to Iraq.  Finally, there was reasonable hope of success.  Long before Bush set about combat operations, he insured that the forces in the region were dominant.  Although the total number of troops involved were roughly equal on both sides, the U.S. had clear superiority in the quality of its fighting force, especially with regard to air power.  Though it was not a foregone conclusion that the UN coalition would win the horribly lopsided victory it did, there was reasonable hope for success.

By the end of February 1991, the U.S. led coalition had waged an arguably just war against Iraq and won.  The UN then set about restoring peace and security to the region in a series of resolutions designed to disarm Iraq and make her less threatening to the region and the world.

 

Iraq: 2002

After more than a decade of economic sanctions, on-again, off-again weapons inspections, and hotly contested no-fly zones, Saddam Hussein remains in power in Iraq.  A new President Bush must deal with Hussein and the recurring problems associated with him.  Events in September 2001 thrust terrorism onto the world stage as never before.  From Bush’s perspective, Iraq is thoroughly linked to terrorism.  In his State of the Union address on January 29, 2002, Bush said:

Iraq continues to flaunt its hostility toward America and to support terror.  The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade.  This is a regime that has already used poison gas to murder thousands of its own citizens -- leaving the bodies of mothers huddled over their dead children.  This is a regime that agreed to international inspections -- then kicked out the inspectors. This is a regime that has something to hide from the civilized world.

States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world.

 

In linking Iraq and global terrorism, Bush began building a case against Iraq, which may lead to renewed war.  To date, no action has been taken, but I believe we must ask the question of whether any should be taken. 

We begin by working through just war theory as it is currently defined to see whether war with Iraq is justifiable.  For the first time in our discussion, the first criterion is problematic.  In Korea more than fifty years ago and Iraq more than ten years ago, the UN provided competent authority for U.S. action.  In keeping with the UN Charter and as directed by Security Council resolutions, the U.S. and its allies drove back an aggressor nation.  At present, there is no UN resolution authorizing the use of armed force in Iraq.  From the perspective of the U.S. as a sovereign nation, President Bush can wage war.  The War Powers Act of 1973 grants the president wide latitude in waging war before Congress makes a formal declaration.  In this case, Congress has authorized the use of U.S. Armed forces to enforce UN resolutions.[10]  At issue today is whether or not the UN must authorize the use of force in the modern world.  This raises sticky sovereignty issues which are not easily resolved here.  For now, let us put this aside as other criteria may render this one moot.

President Bush believes he has just cause to go to war with Iraq.  If we look at the list Althusius offered, neither of the first two fit, as Iraq has not specifically attacked anyone this time.  Preserving peace and tranquility may offer some hope, but absent evidence of a specific attack from Iraq, this one seems weak.  Neither the fourth nor fifth reason offer help.  The sixth, however shows real promise.  If ever there was a “prince [who] has so contemptuously and repeatedly scorned the decisions of courts that justice cannot otherwise be…defended,” then Saddam Hussein is that prince.  Likewise, the seventh offers a possible just cause since Hussein has both failed to keep his promises regarding a variety of UN resolutions and practiced great tyranny on his subjects.

While just cause may be present, right intention is more difficult.  At issue is both identifying what the intentions of the U.S. are, and determining who decides if those intentions are “right.”  At the risk of tumbling off into moral relativism, who is to say that the U.S. view of the world—especially the Arab world—is the right one?  Are our intentions simply to protect our oil interests, or are they genuinely benevolent?  Even if they are benevolent, why would the western (arguably Christian) view be better than the mid-East (arguably non-Christian) view?  Charles Taylor, in Multiculturalism and “The Politics of Recognition,” points out that Islam does not understand the separation of politics and religion the way we do in the U.S.  “Liberalism is not a possible meeting ground for all cultures, but is the political expression of one range of cultures, and quite incompatible with other ranges.  Western liberalism is not so much an expression of the secular, postreligious outlook that happens to be popular among liberal intellectuals as a more organic outgrowth of Christianity—at least as seen from the alternative vantage point of Islam.”[11]  The homogeneity that Althusius assumed in society for determining right intention no longer applies.

Like right intention, achieving relative justice is problematic in a multicultural situation.  Definitions of justice may vary among the various agents.  What we define to be more just for the people of Iraq may be significantly unjust from an Arab perspective.  The ills from which we would save Iraq, the world, and ourselves may be less unjust than the ills we perpetuate by waging war and unwittingly strengthening anti-American sentiments in the middle East.

The issue of proportionality is particularly troublesome.  Apart from thumbing his nose at the world, Hussein has not overtly done anything wrong.  Unlike 1990, he has not invaded a neighboring country.  Bush posits that Hussein is building “weapons of mass destruction” (WMD) in direct violation of UN sanctions.  From an ethical perspective there is a wide chasm between building weapons and using them.  Until such time as Hussein is caught using weapons in violation of UN sanctions or the UN Charter, waging war on Iraq seems inherently disproportionate.  Unfortunately, introducing a concept like WMD to the discussion changes it radically. 

When dealing with conventional weapons, there is a presumption that an alien nation must take some violent action before armed response is proportional.  Taking preemptive action, because a nation has the capability to attack and has a belligerent attitude would be outside of the realm of proportional response.  It seems, though, that to wait for a nation to attack with WMD is foolhardy.  The great moral question, then, is this: At what point is a preemptive attack on a nation in possession of WMD, which has demonstrated aggressive tendencies, proportional?  Once again, we will defer this question, since in our case, other criteria may render this point moot.

War should be the last resort.  Since 1991, Iraq has lived under no fewer than ten Security Council resolutions dealing with disarmament.  Hussein has been directed to dismantle his various weapons programs, and to provide proof of that activity to the UN.  Until 1998, the UN Special Commission (UNSCOM) had weapons inspectors checking Iraqi sites, destroying weapons and the capability to produce weapons.  UNSCOM inspectors were barred from Iraqi sites, which led to air strikes by the U.S. and Britain and UNSCOM’s ultimate departure from Iraq.[12]  Likewise, significant economic sanctions have been employed in an effort to persuade Hussein to participate properly in the community of nations.  President Bush claims the time has come to compel Iraqi compliance.  The Security Council resolution of November 8, 2002, gives Iraq very specific actions to take or risk “serious consequences as a result of its continued violations of its obligations.” Is war now justified if Iraq is in “material breach” of this new resolution?

Obviously, there are two schools of thought at this point.  One says that the moment Iraq is found to have violated the terms of this new resolution, war is justified to disarm Iraq.  This line of thinking assumes that the various methods tried thus far are the only ones that might have any effect.  Since they have not, war remains the only option.  The other camp argues that there are still methods to try.  Since economic sanctions have not crippled Hussein, but rather crippled the people who might overthrow his government in a popular uprising, some new form of economic involvement, coupled with ongoing weapons inspections, might bring about the desired result.[13]  The world community seems to want more compelling evidence that we have reached the eleventh hour; that Hussein has, and is deploying for use, WMD before we declare that we have reached the last resort, and that war is appropriate.

Finally, we should have some reasonable hope of success before we embark on a war.  I have no doubt that we could successfully disarm Iraq by the use of military force; but at what cost?  The last major unmitigated military victory enjoyed by the U.S. was World War II.  Korea is, as of yet, unresolved.  Viet Nam was an utter disaster.  The Persian Gulf War of 1991 was a lopsided victory that left the aggressor in power.  Our activities in Afghanistan are ongoing, but the goal of dismantling significant terrorist networks may not be realized as thoroughly as we had initially hoped. 

What lessons can we draw from this history?  At the end of World War II, we had destroyed the entire warfighting capability of both Japan and Germany.  We forced unconditional surrenders from both nations and then proceeded to occupy and rebuild them significantly in our own image.  Among the reasons we failed so miserably in Viet Nam was the fact that we never “conquered” land.[14]  Another reason for the failure was the gross misperception of the Vietnamese mindset.  We applied very European ideas and ideals to a very non-European country.  We risk the same problem in Iraq.

Our failure in Korea warrants closer examination.  Until late October 1950, there was every indication that we had achieved a substantial victory.  Misjudgment regarding Chinese intentions resulted in a prolonged war.  Although none of the other nations in the Persian Gulf have specifically threatened intervention on the part of Iraq, there is hardly unequivocal support for a decisive invasion.  In part, this may be the result of nations such as Saudi Arabia and Syria being painfully aware of the type of conclusive victory the U.S. has seen in the past.  They do not want to see Iraq as a military protectorate of the U.S.  Success in Iraq is by no means guaranteed.  Classic just war analysis seems to indicate that war with Iraq is not justified.

 

Coast Guard Use of Force Continuum

Borrowing from the Coast Guard use of force continuum, we find something which provides clarity to just war theory.  Although the use of force continuum is designed to be used by an individual exercising law enforcement authority, we can modify it to apply to nation states determining when and how to apply force to other nation states.  Within this continuum, the rule employed by the Coast Guard is to use the minimum force necessary to compel compliance. 

Level 1: Officer presence.  In the world of Law Enforcement, this simply means that an officer is on scene.  The cop sitting on the side of the road uses level one to enforce speeding laws.  In the community of nations, officer presence may simply be the presence of a military force.  To a great extent, peacekeeping operations are designed around the concept of officer presence.  If there are well-armed troops of a variety of nations on scene, the theory goes, then the belligerents will refrain from open combat.

Level 2: Verbal commands.  If the officer on scene needs to provide specific direction to gain compliance, then verbal commands are used.  Imagine a school principal standing in the hallway between classes.  Most students would not run in the halls simply because they see the principal.  Occasionally, though, the principal will need to warn the students not to run.  The UN Security Council has on numerous occasions issued similar warnings to nations.

Levels 3 and 4: Soft, empty hand control and Hard, empty hand control.  These techniques are used in the Coast Guard to deal, respectively, with passively and actively defiant subjects.  The cop who takes hold of a suspect who is sitting down in protest will use Level 3.  An aggressive suspect might be punched in order to subdue him or her (Level 4).  Attempting to define Level 3 and 4 in the international community is more difficult.  One might argue that various economic sanctions work in this manner. 

Level 5: Intermediary weapons.  These techniques are used to deal with particularly belligerent subjects, and include such weapons as the baton and pepper-spray.  In both cases, they are designed to quickly incapacitate the suspect, in order to protect both law enforcement officers and others.  The current use of U.S. and British warplanes to enforce “no-fly” zones in Iraq, and their occasional engagement of ground targets, may be a Level 5 technique.

Level 6: Deadly force.  The final stage in the use of force continuum is one in which the force applied will result in death or grievous bodily injury.  It may be applied under very specific conditions.  When dealing with nation states, all-out war would be the equivalent.

Three conditions must be present in order to use deadly force in a law enforcement environment.  First, the individual against whom the force will be directed must have the ability to inflict deadly force.  Ability is defined as a weapon capable of inflicting death or grievous bodily injury.  If an individual has a gun, then he or she has the ability to inflict deadly force.  Second, the individual must have the opportunity to use deadly force.  Opportunity is unrestricted access to the ability to cause death or serious bodily injury and that someone is within the maximum effective range of the weapon.  Finally, someone must be in jeopardy or the suspect must have expressed manifest intent.  Jeopardy means that death or serious bodily injury is imminent (someone is pointing a gun at you).  Manifest intent is expressed when an individual’s actions indicate that death or serious bodily injury is immediately forthcoming (someone pulls a gun from a drawer, intent on shooting you).

These criteria generally make deadly force a defensive posture.  For the most part, it is a self-defense technique, though it can also be used in the immediate defense of others.  In many ways, these criteria fit within the various “just causes” for going to war.  They do not substitute for the whole of just war theory, but do offer some clarity to the discussion of what constitutes just cause.

 

Iraq

Let us examine our current action in Iraq from a use of force continuum perspective to see how our response might differ from a just war analysis.  It is my assumption that our actions in Iraq are part of our overall response to terrorism and can instruct our response to terrorism which may not be closely associated with a nation.

Although the continuum is designed to be used exclusively within a law enforcement context, we should first distinguish between law enforcement and warfighting activities.  Although the proper response in any given situation may cross back and forth rapidly between them, deliberation in choosing our actions is appropriate.  For our purposes, when dealing with nation states, we can define the first four levels as law enforcement activities and the last two as warfighting.  Level 5 is the least clearly positioned, but, as it is more overtly bellicose than the others, I believe it ought to reside in the category of warfighting.  My purpose in differentiating between the two is to engage the standards of law and evidence to the greatest extent possible when determining when to use military force. 

Since 1991, we have had the functional equivalent of officer presence in the Persian Gulf.  Troops stationed in Saudi Arabia and Kuwait, as well as the constant presence of U.S. Navy units, have insured that Iraq and any other potential troublemakers have had moment of pause.  The trouble with relying simply on Level 1 is that it requires constant presence.  We run the risk of needing to constantly station U.S. troops around the globe in order to serve as the world’s police force.  This tactic is neither desirable nor wholly efficacious; turning the world into a U.S. protectorate will likely result in a greater dislike for the U.S. and therefore a greater incidence of terrorism.  If President Bush is correct that Iraq continues to develop WMD, then officer presence has failed to gain compliance. 

Verbal commands have been repeatedly issued to Iraq to disarm.  Again, the efficacy of these commands is questionable.  Similarly, verbal commands to terrorist organizations may be wholly ineffective, but unless we issue them, it seems to me we act precipitously.

In addition, the UN has imposed economic sanctions on Iraq since 1990.  These devices have severely limited the overall economic activity of Iraq, and have specifically been designed to deny Iraq the means to produce WMD.  UN weapons inspectors were also employed until 1998 to compel Iraqi compliance with UN demands. 

In the law enforcement sphere, we do not act until we have some jurisdiction.  While serving as a boarding officer for the Coast Guard, I did not go aboard another vessel on the high seas unless I had jurisdiction.  My conduct once aboard was similarly limited.  The areas I could search in an effort to enforce the law were limited.  The standard of proof needed to search and take other law enforcement actions was probable cause.  Probable cause is a level of suspicion and standard of proof between mere suspicion and proof beyond a reasonable doubt.

In the case of Iraq, weapons inspectors have the equivalent of a search warrant.  Using the language of law enforcement, however, failure to comply with a search warrant hardly constitutes justification for the use of deadly force.  Within this model, then, failure to comply with the particular demands of weapons inspectors is not justification to go to war.  Our challenge is to find other non-warfighting means to compel compliance.  This, of course, raises the question of what reasonable compliance looks like.  In the case of classic law enforcement, compliance is generally obeying all of the laws of the land, or in the absence of obeying the law, appearing within the criminal justice system to stand trial for some crime.  Perhaps we ought to actively pursue the means to try individuals and nations—in a peaceful way—for crimes against the company of nations and people. 

We have defined Levels 5 and 6 in our model as warfighting, because of the nature of the violence involved in each.  U.S. and British warplanes actively enforcing No-Fly Zones (NFZ) in Iraq routinely attack anti-aircraft (AA) batteries.  Patrolling the NFZ is nothing more than officer presence, Level 1.  Attacking AA batteries in self-defense is Level 5.  Like the law enforcement continuum, though, once the offending AA battery is silenced (complies with the standing instruction not to fire on Allied planes), the level of force returns to Level 1. 

Level 6, deadly force in the law enforcement model, is all-out war with Iraq.  I want to make a clear distinction between the particular rules of engagement for fighting the war if we choose to engage (appropriately covered by in bello principles of just war) and the decision to engage.  In and of itself, an attack by a U.S. warplane on an AA battery may involve the use of deadly force.  It is highly probable that the crew of that battery may suffer death or serious bodily injury as a result of action by the U.S. plane.  Within the broader context, however, one isolated attack on an AA battery is akin to a kick or punch to a person, not deadly force.

In deciding whether or not to use deadly force against Iraq we ought to be guided by the same three questions we use in the LE sphere:

1)              Does Iraq have ability?  Clearly, yes.  Even apart from issues of WMD, Iraq has weapons in the form of a relatively large standing army to inflict death and serious bodily injury to her neighbors and potentially the U.S. 

2)              Does Iraq have opportunity?  Again, yes.  Iraq has unlimited access to those weapons.  With regard to WMD, it is possible that through connections to terrorist networks, Iraq even has the opportunity to deliver those weapons to the U.S. 

3)              Is the U.S. or some other nation in jeopardy?  Has Iraq shown manifest intent to use the weapons against other nations?  Unless Iraq has possession of WMD which are capable of being transported via non-military means, then the U.S. is not in jeopardy.  Other nations in the Persian Gulf may be—Saddam Hussein has already demonstrated a willingness to invade his neighbors—but, given the U.S. presence in the region it seems unlikely that Iraq would invade a second time.  Nor is Iraq demonstrating manifest intent to use any of its weapons—conventional or WMD.

It seems that even in this new context—borrowing law enforcement language and criteria—going to war with Iraq is not justified.  War with Iraq is not currently justifiable from either a just war or use of force continuum perspective. 

 

Conclusion

These two evaluative frameworks may, however, provide for us a model of how to respond to terrorism.  Fundamentally, terrorism falls outside of the classification of war.  It is, by contrast, criminal activity which should be dealt with as a law enforcement problem.  Occasionally, in very specific circumstances, war may be the appropriate level of force to apply, though we should carefully apply both just war criteria and the criteria for determining the use of deadly force before we commit to war against a nation or group.

 

 

Bibliography

Althusius, Johannes. Politica. Trans. Frederick S. Carney.  Indianapolis: Liberty Fund, 1995.

 

Aquinas, Thomas. St. Thomas Aquinas on Politics and Ethics. Trans. Paul E. Sigmund. Princeton University, 1988.

 

Augustine. Political Writings. Trans. Michael W. Tkacz and Douglas Kries. Indianapolis: Hackett, 1994.

 

Baker, James A. III. The Politics of Diplomacy: Revolution, War & Peace, 1989-1992. New York: G. P. Putnam’s Sons, 1995.

 

Miller, Richard B. ed. War in the Twentieth Century: Sources in Theological Ethics. Louisville: John Knox Press, 1992.

 

Stoessinger, John G. Why Nations Go to War. Boston: Bedford, 2001.

 

Taylor, Charles. Multiculturalism and “The Politics of Recognition”. Ed. Amy Gutmann. Princeton, 1994.

 

United Nations Security Council Resolution (S/1501) dated 25 June 1950.

 

United Nations Security Council Resolution (S/1511) dated 27 June 1950.

 

United Nations Security Council Resolution 660 dated 2 August 1990.

 

United Nations Security Council Resolution 674 dated 29 October 1990.

 

United Nations Security Council Resolution 1441 (2002) dated 8 November 2002.

 

“U.S. ‘Not at War,’ President Asserts.” Times [New York] 29 June 1950, p. 1.

 

Woodward, Bob. The Commanders. New York: Simon and Schuster, 1991.