Michael Hallett

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Unionville, CT 06085

(860) 539-9265



“Conceptualizing Pre-emptive War in Light of Battered Spouse Self-Defense”



“While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country;”(NSS 2002 6)


The war on terrorism relies heavily on the doctrine of preemptive war. Indeed, the 2002 National Security Strategy of the United States (NSS) for the first time explicitly lists preemptive war as a key element of the US grand strategy.

And, as 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 peace and security is the path of action. (NSS 2002 Forward)

At first glance, the doctrine of preemptive war as articulated in the 2002 NSS seems to violate the dominant self-understanding of the US military tradition as one based on recourse to war only in response to clear acts of aggression on the part of foreign states. More importantly, preemptive war apparently violates the basic norms of the international system based on the sovereign equality of states and the principle of non-interference as embodied in United Nations. Indeed, there are several major objections to such a doctrine. First, without internationally legitimate certainty as to the nature of the threat against which the preemptive war is directed, many evaluate the preemptive doctrine as simply a self-serving argument for aggression. Establishing the authenticity of the threat is extremely difficult, as the burden of proof required for justifying military action is extremely high.[1] From this perspective, war is only legitimate if all other methods of conflict management have failed and threat to one’s own country is imminent and potentially overwhelming. Self-defense is justified, therefore, only when the character of the threat is unmistakable and unavoidable. Absent these conditions, if a war is initiated before aggressive action (understood as the movement of military platforms across international borders) is performed by a state to be attacked preemptively, the war is one of aggression, not self-defense.

Second, and closely related to the first problem, many view preventive war as a severe violation of international law, especially as instantiated in the Charter of the United Nations. Although the UN Charter Article 51 allows the use of force in self-defense, there is little guidance as to the legality of first strikes under the article, and certainly nothing that would initially seem to legitimate a preemptive war doctrine. Article 51 of the UN Charter 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.” [Italics added](Article 51 Charter of the United Nations) The key is the timing of the self-defensive use of force: one must be bloodied before a response is legitimate. Further, in practice the Security Council must sanction such use. Absent that approval, and without the certainty provided by massive causalities on one’s own side, preventative war is illegal and the practitioners of preemptive war lawbreakers.

Both of these objections are made from within the dominant perspective on self-defense and international relations, what Graham Allison and Philip Zeikow in their Essence of Decision, refer to as the “Rational Actor Model (RAM)”. The Rational Actor Model holds that the actions of states can be understood through analogy with the actions of rational, utility maximizing individuals and must be judged by similar criteria. From this perspective, the doctrine of preemptive war in the National Security Strategy is a major violation of the basic presuppositions of the international system. [2]

However, the RAM is not the only lens through which to view conflict. Feminist legal theory has brought the importance of employing an alternative model of decision-making to self-defense situations, especially concerning the actions of battered spouses. The legal categorization of the murder of abusive spouses by battered women as self-defense provides an analogy to preemptive war.

Although, of course, decision-making is not gendered, approaching the problem of preemptive war from the perspective of feminist legal philosophy provides a useful starting point from which to shift the framework of the debate about preemptive war. This requires a move from reliance on the traditional rational actor based just war tradition, in which borders clearly defined the areas of conflict, into a more dynamic framework, suitable for dealing with the strategic problems presented by modern terrorism. Like the self-defense of battered women, the US’ preemptive war doctrine is based not on the traditional rational actor model of decision-making, but employs bounded rationality in terms of what Gary Klein refers to as Recognition-Primed Decision-making in his Sources of Power: How People Make Decisions.

The Recognition-Primed Decision-making model provides an alternative way to frame the understanding of preemptive war, not as a transgression of the method of conflict management sanctioned by both international law and tradition, but as an appropriate response to specific threat conditions. Preemptive war and the self-defense of battered women are linked as methods of coping with extreme situations like terrorism, with which the traditional rational actor model is unable to deal.

Preemptive war is a species of self-defense based on threat assessments derived from pattern recognition, using expert knowledge and a decision-making process analogous to that employed by battered spouses in making their own self-defense decisions. The procedure relies on expert knowledge concerning the pattern of the threat, not its temporal imminence. This article will therefore refute the view that the RAM understanding of self-defense as the use of force against an imminent threat is the only adequate justification for recourse to war.

In this article I will examine the case in Canadian jurisprudence of Lavallee v The Queen and the analogies it presents to the situation of the US in regard to justifying a doctrine of preemptive war. This will be followed by an examination of Klein’s Recognition Primed Decision-making (RDM) that underlies the decision-making process required to justify preemptive war. Third, I will examine the advantages of a foreign policy that includes the preemptive war doctrine as a method of justifying the use of military force in self-defense.

Battered women and the Reconfiguration of Self-Defense: The Case of Lavallee v Queen

In drawing out the analogies between battered women and preemptive war it is first necessary to describe the conditions of the case Lavallee v The Queen. Briefly, the facts of the case are as follows: he appellant had been living with Kevin Rust for three or four years, during which she had been repeatedly abused, both mentally and physically, to the point where emergency room care was required. After another argument following a party, the appellant shot Kevin Rust in the back of the head as he was leaving the room after beating and threatening once again to kill her. (Dyzenhaus 218-219)

The case was concerned specifically with the appellant’s appeal of the lower court ruling that had overturned her acquittal. The Judge, Madame Justice Wilson, based her decision to uphold the acquittal based on the legitimacy of the expert testimony on the specific condition of battered women and the relevance of these psychological dynamics on the understanding of self-defense. Our discussion of the case will thus have two parts. First, it will discuss the requirement for expert knowledge of the situation of battered women. Second, it will show how the understanding of self-defense must be reconfigured to adequately deal with the specific circumstances surrounding the case of violent self-defense performed by women against their batterers.[3]

The Necessity for Expert knowledge of battered women

First, the justice ruled that contrary to the lower court decision, expert testimony on the psychological dynamics involved in battered women’s relationships with their abusers was necessary for jurors to understand the situation. The judge held that in spite of the popular belief, a basic knowledge of human nature (as most jurors feel they posses) is insufficient to properly evaluate self-defense claims in situations involving battered women. (Dyzenhaus 223) The nature of battered women and their relationship to their abusers is, according to the judge, often misunderstood and therefore expert testimony is necessary. Battered women are not in a situation analogous to that of most people (generally men involved in altercations with strangers) judged within the traditional self-defense category. Therefore an understanding of the specific situation of the battered woman is required to make an informed judgment.

The Nature of Self-defense


The second component concerns the nature of self-defense. In her decision, the judge initially explained that the traditional view of self-defense is based on “the case of a one-time bar-room brawl between two men of equal size and strength”. (Dyzenhaus 225) Accepting this situation as normative shapes the nature of the criteria employed in judging the legitimacy of the self-defense. Self-defense can be defined as “The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of effort in self-defense if he or she believes that the danger of bodily harm is imminent and that the force is necessary to avoid this danger.” (Garner 1390) The judge emphasized three key elements of self-defense in her opinion: the temporal, (specifically the extent of time between awareness of the threat and violent action to avoid it), magnitude of force used, and lack of alternatives to self help (exit options). (Dyzenhaus 224) These are standard elements of the traditional understanding of self-defense, but have a different significance in the case of the battered spouse defending him or her self against an abusive partner.

The temporal dimension of self-defense, the time span between recognition of the threat of serious bodily harm or death and the defensive action, is of central importance. It entails the requirement for “imminence” in legitimate self-defense. The self-defensive action in the traditional view must take place immediately before the action that will, if not defended against, result in one’s own severe injury or death. The Judge explains, “The rationale for the imminence rule seems obvious. The law of self-defense is deigned to ensure that the use of defensive force is really necessary. It justified the act because the defendant reasonably believed that he or she had no alternative but to take the attacker’s life. If there is a significant time interval between the original unlawful assault and the accuser’s response, one tends to suspect that the accused was motivated by revenge rather than self-defense.” (Dyzenhaus 225) In the normative case, one must wait for the actual attack to occur before taking action in self-defense. One cannot simply stab a fellow bar patron because one thinks he will later pose a threat. In addition, one cannot wait until after an altercation and then attack the other in the parking lot and still claim one’s actions were based on self-defense. The time elapsed is too great and other options were available.

The second component, concerned with the magnitude of force, requires that the force used must be commensurate to the threat. One cannot legitimately respond to a punch with a shotgun blast. However, this does not mean that an escalation of violence is always impermissible: it can be legitimate to respond with gunfire to the prospect of being beaten to death by someone bigger, stronger, and/or simply more skilled in hand-to-hand combat. There are many, many ways to kill another human being.

In summary, self-defense is legitimate when no alternatives exist; in other words, when one cannot run away, or call the police. Even then, the use of force must be reasonable. While these criteria seem legitimate for most cases of self-defense, they do not adequately treat the situation of battered women.


The Critique of the Phallocentric Understanding of Self-Defense

Madame Justice Wilson’s critique of this view of self-defense is based on a broader critique of the model underlying most, if not all, legal reasoning: the rational actor model or reasonable man standard. The paradigmatic “reasonable man’s” response to a physical threat is not necessarily analogous to that as experienced by a battered woman. She says, “The definition of what is reasonable [for a battered woman] must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical ‘reasonable man’.”(Dyzenhaus 225) Although within the case here the critique was designed to undermine the phallocentric understanding of self-defense, essentially, this is not so much a critique based on gender but on the nature of the “reasonable decision-maker” or in other words, the model of decision-making employed. Here she is in effect critiquing legal reasoning based on the rational actor model. Thus the initial examination of self-defense through the gate of battered women has led us into a critique of the model of decision-making assumed to be normative. It is not that certain types of decision-maker are gendered, but that the traditional understanding of rationality is itself flawed.

Yet the expertise in threat assessment that grounds the modified model of self-defense in the case of battered women is not the result of gender, just as the rational actor model is not gendered. It is therefore possible to expand the critique of the rational actor model found in feminist jurisprudence to provide insight into alternative models of decision-making whose applicability goes beyond that of battered spouses.

For the rational actor model of decision-making appears not just in legal reasoning, or decisions involving self-defense. Indeed, according to Graham Allison and Philip Zelikow in Essence of Decision, the rational actor model is the primary decision-making model used in several academic disciplines “as well as the less structured notion that underlies our everyday assumption of human purposiveness both in individual behavior and in national foreign policy.”(Allison 18) It thus informs the “definition of what is reasonable” which Madame Justice Wilson questioned above. Therefore the key element of self-defense, the “reasonable apprehension of death” must, according to the Justice, be reevaluated in the battered women’s situation. Yet this reevaluation need not be grounded on the gender of the people involved. Indeed, the reevaluation is not dependent on the differences in gender, but in the form of rationality employed by the decision-making. We will discuss this further below when describing the alternative.


Reevaluation of Self-Defense in Light of Battered Women’s Expertise

This reevaluation depends upon the threat assessment expertise of the battered woman, as well as the lack of alternatives to self-help and the severity of the consequences of inaction. The battered woman, as a result of the cyclical nature of the violence she experiences, becomes a threat assessment expert. (Dyzenhaus 226) The judge explains, “…it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck, even if an outsider to the relationship cannot. Indeed, it has been suggested that a battered woman’s knowledge of her partner’s violence is so heightened that she is able to anticipate the nature and extent (though not the onset) of the violence by his conduct beforehand.” (Dyzenhaus 227) In other words, the woman can predict when the violence will be so extreme as to threaten her life. Thus the understanding of imminence must be transformed. In the case Lavallee v Queen, although the fatal blow itself was not temporally imminent, because the victim had his back turned, due to her expert knowledge she evaluated the situation as life threatening and decided that she had to take immediate action to save her life.

This brings us to the other important element of the self-defense doctrine, the lack of alternatives to self-help. (Dyzenhaus 228) The obvious response to the plight of the battered woman is to leave the situation. She must simply exercise her exit option and leave the batterer. Yet this exit option, though apparently easily available from the perspective of the traditional model, may not in fact be actionable. The judge relied on expert testimony on battered women to demonstrate that it is often impossible, for psychological as well as financial reasons, for a woman to leave the situation. Hence it can be reasonable for a battered woman to kill her batterer in self-defense while a man in a bar in an encounter with a stranger would not be similarly justified. The man in a bar can leave – he is not tied down by the presence of children, lack of financial support, or the available of safe refuges.

Third, waiting for perfect certainty in the accuracy of her threat assessment, puts the battered women at highest possible risk, death. The consequences of inaction are not discomfort or inconvenience, but death. Yet there is a bias against self-defense due to the lack of certainty; one is always within the law if one suffers oneself to be murdered. Taking action to prevent that event may or may not be legal and open oneself up to punishment by the criminal justice system.[4]  Madame Justice Wilson addresses this problem specifically when she says, “…Even accepting that a battered woman may be uniquely sensitized to danger from her batterer, it may yet be contended that the law ought to require her to wait until the knife is uplifted, the gun pointed, or the fist clenched before her apprehension is deemed reasonable. This would allegedly reduce the risk that the woman is mistaken in her fear, although the law does not require her fear to be correct, only reasonable.”(Dyzenhaus 228) The justice concludes that this requirement would be unreasonable, and in effect, a sentence to murder. The fear of excessive use of self-defense would thus protect batters while forcing the victims of the battery to bear the costs of this fear with their pain and death: an undesirable conclusion.

If the cues indicate that this abuse will in this instance be so extreme as to result in her death, her scope for entertaining and evaluating other options is so limited as to be meaningless. She can wait, in spite of her best judgment, hoping that she is mistaken and that the beating will be not as severe as she fears and rely on the restraining order and general adherence to civilized norms of behavior to prevent him from killing her in his rage. Yet if mistaken in her hopes she pays with her life: the scope for error is extremely limited. The onus is on her to take action commensurate with the actual threat, while the aggressor is free to act with whatever level of violence he considers appropriate. He can thus bet that he can kill her before she realizes the beating will be fatal and takes appropriate self-defense action. If she then works through the various self-defense options in accordance with the RAM, such as verbal remonstration on the way the beating hurts her feelings, as well as flesh, or threatening legal action she well may be dead before the legal threat is articulated, let alone actually in place.

This has important international relations implications discussed further below.

The Recognitive Decision-making Model vs the Rational Actor Model

If one accepts that the “reasonable man” standard is inadequate, then it is necessary to pose an alternative decision-making process to justify self-defense. Gary Klein refers to this alternative as recognition primed decision-making (RDM) in his Sources of Power: How People Make Decisions. According to Klein, RDM describes how people actually make decisions, in spite of the theoretical dominance of variations of the rational actor model. He explains that in the rational choice strategy,

“The decision-maker:

1. Identifies the set of options.

2. Identifies the ways of evaluating these options.

3. Weights each evaluation dimension.

4. Does the rating.

5. Picks the option with the highest score.”(Klein 10)

This rational choice methodology has several advantages. It provides a way to quantify data, examines all available options, and compares those options in a process Klein refers to as “comparative evaluation”. (Klein 20) However, people making decisions rarely have the time to work through the entire process. In addition, there are serious epistemological deficiencies in the method. People simply lack all the required information to make legitimate decisions within the rational choice model. As Klein says, “The problem is that the assumptions of the rational choice strategy are usually too restrictive. Rarely is there the time or the information needed to make this type of strategy work.”(Klein 29)

Klein then presents his alternative Recognitive Decision-making (RDM) model, based on what Herbert Simon in his Reason in Human Affairs referred to as “satisfying”(Simon 49). When satisfying, the decision-maker does not examine all possible options but chooses the first option that will provide an adequate solution. Effective satisfying relies heavily on the expertise of the individual in the situation. Klein explains the basic RDM strategy, informed by satisfying, as follows:

[The decision-makers] understand what types of goals make sense (so the priorities are set), which cues are important (so there is not an overload of information), what to expect next (so they can prepare themselves and notice surprises), and the typical ways of responding in a given situation. By recognizing a situation as typical, they also recognize a course of action likely to succeed.”(Klein 24)

This has direct applicability to the battered woman situation. The battered woman uses RDM in making her self-defense decision. Through experience of battery with the specific batterer she develops expertise in predicting the course of the ensuing violence. This includes recognition of the cues of impending violence, the usual course of the conflict, and the typical ways to respond in the situation. Through familiarity with the pattern she can predict both what the batterer will do and what she needs to do to preserve her life. She knows what to expect next, whether this is affectionate contrition after the beating stops or that the blows to come after the batterer, for example, stops yelling and becomes very quiet will be extremely destructive.  Therefore, in the case of Lavallee v The Queen, the appellants’ action, shooting the batterer in the back as he leaves the room could have been a reasonable response to the situation: experience in recognizing the pattern of the activity has enabled her to make the appropriate decision. Although her life was not in imminent danger at that particular moment, she knew with a sufficient degree of certainly that he was going to kill her.[5]

Of course, shooting in the back is not a reasonable response for the proverbial man in a bar, especially if making decisions based on the rational actor model. The man in the bar has the luxury of identifying options, such as leaving, calling the police, waiting for his friends to back him up or delivering a sucker punch to tilt the fight balance in his favor. He can weigh each option, compare the expected payoffs, (status losses from leaving, status gains from continued taunting once his friends are there to provide backup) and pick the option that maximizes his utility. The consequences of misjudging the situation are unlikely to be fatal, and there is a good chance others will step in to stop the fight once honor has been served with a few punches.

This situation is very different from that of the battered woman’s in three key ways. Unlike the reasonable man in a bar with several options, she has expert knowledge of the batterer, very limited exit options, and is playing for extremely high stakes. First, she has expert knowledge of the situation. In other words, her situational awareness is far superior to that of the man in the bar or the man on the street accosted by a stranger. Her violent self-defensive action is not taking place in a vacuum, but is embedded in a historical narrative of personal experience. She knows the pattern of violence and therefore can predict its nature with a high degree of accuracy through the use of intuition.[6] The man in the bar or on the street lacks the same in-depth understanding of the adversary. Second, she lacks exit options, both because of the specific pathologies of her situation and because her escape is blocked by the batterer. The exit option provided by legal methods is also unavailable. A restraining order, though more effective than the media would lead one to believe, is of no help when the batterer violates that order and is in the room. The battered woman is then beyond the aid of the legal system, and must rely on herself for help.  Third, the consequences of failing to take self-defensive action, including killing the batterer, are the highest imaginable: death. The batterer has already demonstrated both his will and capability to violently assault her, and hence her intuition can serve as a valid guide to future action. Failing to act before exploring yet some new appeasement option or hoping for help from the police responding to the violation of the restraining order is unlikely to prove effective an effective life preservation methodology. Thus the self-defensive action can be justified in terms of RDM even though it appears illegitimate in light of the rational actor model.

Objections to the Use of RDM

An obvious objection immediately arises: it seems that allowing pattern recognition, and particular situational awareness to determine the legitimacy of self-defensive action could lead down a slippery slope of indiscriminate violence. It is only, one might claim, adherence to the rational actor model that prevents everyone appointing him or herself an expert vigilante. However, simply because the decision is made based on recognition of a pattern, instead of certain diagnosis of the opponent’s action as posing a threat and responding violently to that threat after all other options have proven inadequate, does not mean that the self-defense is unjustified. The pattern must exist.[7]

This objection is rooted in a refusal to accept that there are situations that depart from the normal conflict management procedures that are both used most of the time, and that we would like to see employed all of the time. In the case of battered women, it is the idea that she should rely on rational persuasion, the legal recourse provided by a restraining order, or flight from the batterer. The idea that women to save their lives must, in the midst of peaceful developed countries, turn to violence is unpleasant. We must be more civilized than that. We must act in accordance with the highest standards of behavior. Of course, this demand applies to the victim, not the aggressor. The aggressor, in both the domestic violence and state based violence cases, is somehow exempt from having to act in accordance with basic international human rights norms. A bizarre calculus is at play in which those already killed by the regime are considered sunk costs, while those potentially killed or injured by the intervening forces are valued more highly than all past and future victims of the regime. The extreme response to violence must be “civilized” while the perpetuation of atrocities by state forces is tacitly condoned.[8]

Implications for Understanding Preventative War As Self-Defense

We will now look at the implications of this view for the US National Security Strategy. On the level of state action, the justification of the use of force based on pattern recognition is clearer, and less susceptible to application, than the doctrine is on that of the individual because the judgment is not that of the individual directly wronged. Several observation and evaluation systems must concur that a pattern justifying intervention exists.

The United States as Battered Woman


How does this relate to the United States’ National Security Strategy? Although it may initially sound ludicrous, I argue that the situation of a battered woman is analogous to the situation of the US in regard to terrorism in three ways: the lack of exit options, the seriousness of the consequences of inaction, and the nature of the threat assessment.


1. Lack of Legal Recourse

First, there is currently only limited legal recourse for responding to extreme situations like terrorism. The battered woman is faced with a threat of violence in spite of the well-established law enforcement institutions with clear jurisdictional authority and responsibility for ensuring that the restraining orders, for example, fulfill their protective function.  The US is in an even more difficult situation. It must face terrorist threats, but with the added difficulty of no global legal authority to defend it, while well established institutions hinder its self-defense efforts. This is due in part to the unavoidable, though reducible lag between the recognition of a need for new systems to deal with an issue and the development of the institutional apparatus to operate those systems, whether political, economic or legal. The international legal system has not yet created the necessary forms to deal with the threats, thus requiring reliance on the self-defense default position.

It is possible that development of the international criminal court could create appropriate forms for dealing with terrorist threat providing, for example, special legal authority for preemptive strikes. However, that has not yet occurred and so terrorism is dealt with in the same categories as other criminal activity, giving rise to the problem discussed in this paper.[9]

2. Lack of exit options

The lack of exit options provides the second of the three areas of similarity. Just as the battered woman cannot escape the situation, so the US has nowhere to run to escape the terrorist threat. The often-repeated truism that the oceans no longer protect the US is only part of the picture. The terrorist threat is based not on the actions of the US, though specific actions and policies may exacerbate the threat. Fundamentally, the threat is the result of opposition to the existence of the US, its manner of being and its persistence in the world. Even if the US were to withdraw within its borders and no American left US soil, it would remain a threat to the terrorist worldview simply by offering an alternative mode of life. The mere existence of the alternative is a threat.[10] This can be referred to as the “free erosion” effect. This is the idea that the existence of an alternative seduces people away from adherence to traditional ways of life. Thus the alternative’s mere existence is an attack on the elites who prosper as a result of maintaining the other way of life. In other words, the US is a pernicious seducer, which seduces simply by being. No exit, other than the simultaneous self-immolation a la the Lotus Sutra of all Americans, exists for the US from this situation.

This is not to say that the US lacks options for addressing the threat posed by terrorism, or that it does not need to develop innovative ways of fighting the battle for the hearts and minds of its enemies. It is essential that all elements of national power, the diplomatic, informational, and economic be applied to shape the international environment in a way that reduces the need for recourse to military force. Of course, the US has a far broader range of options than a battered spouse, but in the extreme case of groups that have both stated their intention and repeatedly demonstrated the capability to attack the US, there is no virtue for the US in delaying the use of force in self-defense until the death of more Americans has proven beyond a shadow of a doubt that the threat remains valid.

3. High Costs of Inaction

This brings us to the second point of similarity, the high costs of inaction for both the US and battered women. The justification for responding to aggression with force is generally the use of force by the other. Yet in the international realm this in effect means that self-defensive action is possible only after people have been killed. In the case of the individual, this ends the problematic situation. Of course, the state persists in spite of the death of individuals; the individual does not. The reliance on the RAM international law model, requiring absolute certainty, mandates the death of one’s own citizens; an extremely high cost to pay to legitimate self-defense. Like the requirement for certainty for battered women, the reliance on the RAM model increases the costs of determining the legitimacy of the defensive action onto the potential victims. In most cases, the potential victims must become actual victims before actions can be considered. It is as if violent death is the fuel for humanitarian intervention – only massacres can transform the potential energy of the good intentions into kinetic life-saving actions.[11]

The strategy of preventive war informed by the RDM model offers a better method for justifying self-defensive actions than reliance on the RAM international relations models of clear and present danger posed by nation states.[12] In other words, the actionablity of a threat should not be based on its temporal imminence as in the traditional RAM view of international relations.

Thus the lens provided by the battered spouse situation generates two related perspectives, the first specific to US foreign policy and the second concerning collaborative international security efforts.

Implications for US foreign policy

For the US, preemptive war has the potential to both meet the self-defense needs of the country in the service of its traditional RAM articulated national interest, and increase the security of its own citizens as a positive externality of defending the rights of others. Preemptive war is not necessarily a cover for traditional invasions of other countries in order to force them to serve your interests or gain desired resources, just as violent self-defense by battered spouses is not necessarily simply an excuse to kill an intimate partner. Employing RDM in the preemptive war decision making process offers a better probability of meeting the protective goals of the US and reducing human suffering than does use of the pure national interest arguments necessitated by reliance on the RAM.

The United Nations

If the UN utilized RDM and privileged human rights over the principles of sovereignty and non-interference, a pattern of threatening behavior by a state, including massive human rights violations, motivate preemptive war to protect those rights.[13] Here the overlap between preemptive war and humanitarian intervention becomes explicit. The pattern recognition required for decision-making based on RDM to justify intervention is easier to discern and less prone to mistakes than that of the individual battered woman. The extra-judicial massacre of citizens, especially through murder/rape squads roaming the countryside or shooting people so that they fall into mass graves, the use of chemical weapons, or harboring terrorists and terrorist training facilities can be considered components of a threat-presenting pattern. Indeed, the application of a consideration for basic human rights, such as that found in the Universal Declaration of Human Rights, could provide the foundation for recognition of threatening patterns. Widespread violation of those rights could serve as a tripwire for designation as a threat, alerting the international community that a threat pattern is emerging and initiating a military response.[14] Currently the concern for the principles of soveregnity and non-interference prevent the United Nations from acting, in most cases, to protect these rights. Thus the international collective security apparatus of the UN serves not to protect the lives of vulnerable populations but provides a shield behind which they can be butchered. A shift in the understanding of preemptive war could reduce the perverse incentives to violence provided by the current system.


How would a world that relied on RDM to justify preemptive war appear? A return to the situation of battered women can provide the initial outlines.

If a pattern of abuse of a spouse served to ground self-defensive use of force on the part of the victim, it could create incentives to avoid violence in dispute settlement procedures within intimate relationships. Currently, the legal bias requires the suffering of violence if one cannot persuade the other to stop the abuse or leave the situation.

Similarly, if a pattern of abuse of human rights of one’s own citizens and threats by state or non-state actors toward other countries could justify preemptive war, a global order could come to take shape in which massive violations of human rights would not be permitted by the collective security apparatus of the United Nations and terrorists would have to translate their goals and procedures for meeting those goal into democratic political forms. Countries that acted unilaterally to stop such abuses would be hailed as heroes for bearing the protection costs, not attacked as lawbreakers. Preemptive war would also create incentives for potential genocidal regimes to find other means of accomplishing their goals, as foreign armed forces would employ against them the same level of violence they were using against their own less well-armed citizens.

The end of the rationalistic, Enlightenment vision of international harmony, non-violent conflict management, is parasitical upon a rigorous and consistent use of violence. Under the current system, as long as one’s abuse of human rights, and indeed genocide, does not spill over international borders, any action from the international community will be minimal and take place only after much of the goals of the ethnic cleansing are accomplished. Rwanda, the former Yugoslavia and recently Sudan provide examples of this. The lesson of the international response to genocide since the end of the Cold War is to carry out ethnic cleansing as quickly and thoroughly as possible. The beauty of genocide is that even if one is eventually forced to stop, one’s enemies are dead; they have ceased to be and there is hope that if your people breed at a rate exceeding that of the remaining others, those others can be ultimately totally displaced. The punishment imposed by the international community for inciting or carrying out genocide consists of potential incarceration in the Netherlands. This punishment, consisting of access to full medical, dental, and the gratitude of one’s people, possesses little deterrent effect.

Preemptive war should be seen as a species of self-defense based on threat assessments derived from pattern recognition, not the temporal imminence of the threat. From the RDM perspective, the burden is no longer borne exclusively by the potential victim to wait until all uncertainty about the intentions of the other is removed by the death of one’s own citizens, just as a battered woman need not wait for the final knife blow to take her life, but can act to defend herself when the pattern indicates that the next encounter will be fatal.

Of course, difficult, subtle cases will continue to emerge, and each case will have to be evaluated on its own merits. However, understanding preemptive war as a type of self-defense in which one’s own security is increased as a positive externality of defending others, would facilitate action in many cases, thus reducing both the threat to the US and the tremendous cost in human suffering currently endured by the world’s most vulnerable populations.



[1] As we will see below, in accordance with the Rational Actor Model, all other options must be conclusively eliminated prior to the employment of military force as a last resort.

[2] See Allison and Zelikow’s discussion of the pervasiveness of the RAM in decision-making. (Allison 18)

[3] Importantly, though since the case here discusses specifically battered women, the problem of domestic violence is not gender specific. Men are battered as well as women. Nor is violence restricted to heterosexual couples. Gay and lesbian couples are also subject to domestic violence. See for example No More Secrets, Violence in Lesbian Relationships, Janice Ristock, Routledge, 2002 and Violence in Gay and Lesbian Domestic Partnerships, Claire Renzetti, Harrington Park Press, 1996.

[4] In legal scholarship a distinction is made between “perfect” and “imperfect” self-defense. “Imperfect self-defense. The use of force by one who makes and honest but unreasonable mistake that force is necessary to repel an attack.” “Perfect self-defense. The use of force by one who accurately appraises the necessity and the amount of force to repel an attack.” (Garner 1390).

[5] Of course, she was not perfectly sure. However, requiring absolute certainly in self-defensive action is too much to ask. The burden should not be on the victim to hope the ensuing violence is not fatal- when she is certain it is too late. The Golden Palominos, album Dead Inside contains a song entitled “Victim” which although not about a battered spouse, illustrates this point. The lyrics, by the poet Nicole Blackman, consist of a first person narrative a woman who has been kidnapped and held captive. The last line describes the woman hearing the click of the shotgun pressed against her head: that click is unassailable certainty.

[6] Klein explains, “Intuition depends on the use of experience to recognize key patterns that indicate the dynamics of the situation. Because patters can be subtle, people often cannot describe what they noticed, or how they judged a situation as typical or atypical. Therefore, intuition has a strange reputation. Skilled decision-makers know that they can depend on their intuition, but at the same time they may feel uncomfortable trusting a source of power that seems so accidental.”(Klein 31) Intuition does not generate insights that can be articulated in terms of the rational actor model, and is thus deemed illegitimate. (See Klein 34)

[7] As Madame Justice Wilson pointed out, “Obviously the fact that he appellant was a battered woman does not entitle her to an acquittal. Battered women may well kill their partners other than in self-defense.”(Dyzenhaus 231)

[8] Leo Strauss, in his Natural Right and History, speaks to this bias against violence and in favor of adherence to the highest possible standards of behavior when he makes a distinction between two types of justice. He says, “Justice has two different principles or sets of principles: the requirements of public safety, or what is necessary in extreme situations to preserve the mere existence or independence of society, on the one hand, and the rules of justice in the more precise sense, on the other. And there is no principle that defines clearly in what type of cases the public safety, and in what type of cases the precise rules of justice, have priority. For it is not possible to define precisely what constitutes an extreme situation in contradistinction to a normal situation.” (Strauss 35)

[9] The lack of appropriate forms has resulted in the controversy surrounding the US use of Guantanmo Bay, Cuba as a terrorist suspect detention center.

[10] The free states in antebellum US provide an example of free erosion in regard to slavery. Even without actively promoting the abolitionist cause, the mere presence of an alternative to continued slavery eroded the institution.

[11] Yet even when the fuel is present there is no ready vehicle to provide succor.

[12] Indeed, in light of our discussion above it could be considered the first explicitly feminist national security strategy.

[13] There is some overlap between preventative war and humanitarian intervention. Most preemptive wars will be humanitarian interventions, though their primary motivation will be protection of the US. Further discussion of this point is beyond the scope of this paper.

[14] Single, isolated violations, required by an emergency, would not necessarily justify intervention: extreme measures are sometimes necessary. It is only the pattern of violation that would justify intervention. Why? Because states violating the rights of their own citizens provide fertile ground for the export of that violation. The burden should be on the regimes violating their own citizen’s rights to prove that they do not pose a threat to others, either actively or by harboring those who would, not on the countries attempting to stop the violations. Now the burden is reversed. A country can do whatever it likes to its own citizens, behind the shield of national sovereignty, and the UN will do nothing to hinder it. The former Yugoslavia, Rwanda, Cambodia, North Korea, Iraq and Sudan provide recent examples.