Preemption, Uncertainty & Jus ad Bellum in Operation Iraqi Freedom:

A Study of the Just Cause Criterion

Major Jesse W. Zuck[1]

Instructor, United States Military Academy

§1 Introduction[2]

War is, especially from the perspective of the people actively waging it, evil. Unfortunately though, in many cases this evil is a necessary one because it is the lesser of two. “There are circumstances in which the first and most urgent obligation in the face of evil is to stop it. Which means there are times when waging a war is morally necessary to defend the innocent.”[3] The practical necessity of war results from the primary responsibility of any legitimate national government: protection of its citizens from foreign aggression. Even liberal theories of government such as Nozick’s ultra-minimalist state recognize the national government’s responsibility to provide for the protection of its citizens from external attack. Traditionally this meant that a state needed to protect its citizens from the direct attacks of other aggressive nations, but international terrorism presents new challenges to a state’s ability to accomplish this charge of protection.

When considering this responsibility, leaders and philosophers find themselves in a conundrum: the horror of war certainly urges us to argue for peace, but we find the reality that war is sometimes necessary in order to protect the citizens of just nations. In order to reconcile the two problems, philosophers of the just war tradition have developed a rational framework that allows national leaders to avoid war when possible while fulfilling their responsibility to provide a peaceful environment for their citizens. Historically, just war thinkers have sought to determine the circumstances that allow for (or even require) the resort to war. The theory provides a “structured way of thinking about the trade-offs between evils—between war and the anticipated evils should war not be fought.”[4]

Beyond the impact war has upon individual soldiers and even the society involved, war also affects the international community of independent states. Just as individuals naturally desire to live in peaceful local communities, individual societies also naturally desire to live in a peaceful international community. Political theorists generally agree that in order to achieve this desire, it is reasonable to accept that a state has the right to defend itself against aggression, but wars of conquest are not justified. Given this consensus, if we are to justify war in any case, there must exist some extreme conditions that allow or require us to upset the international community by resorting to war.

The changing face of warfare has complicated our understanding of the war framework; the theory must adapt to these new challenges. Some might argue that these changes in war fighting are extreme enough to render the framework obsolete. Critics might mistakenly believe that the questions that the just war theory attempts to answer are no longer important in modern war or that our contemporary conception of justice does not facilitate this sort of investigation. But our analysis will reveal that these critiques are mistaken, that the framework is still guides nations in the just use of force, and that the conception of justice the framework assumes still agrees with our commonly held intuitions.

To accomplish this analysis, I will apply each of the just war criteria to the US-led war on terrorism and evaluate the epistemological challenges terrorism present. Along the way I will recommend some modification or reinterpretation of the theory as necessary. Certainly the just war tradition has proven able to guide nations to right action in the past and we must take care not to violate the spirit and intent the founders had in mind. But in order to remain relevant in guiding decision makers, it must reflect the changes in warfare as necessary; we must take care to only improve the theory where absolutely necessary.

In general terms, I will evaluate the impact of the advent of terrorist organizations to the international arena on just war considerations. These organizations represent a new challenge[5] because they are not simply irregular (i.e. guerrilla) forces of individual nations and therefore are not (usually) extensions of national governments or policy. But in order to analyze this specific new development in warfare, we ought to review the just war theory (JWT hereafter) to date, which requires at least a brief discussion of its philosophical underpinnings.[6] But the focus of this paper will be on how the theory applies to nations confronted with the threat of international terrorism.

Specifically I will investigate the just war considerations as they apply to preemptive strikes against nations that support terrorism, like the United States-led Operation Iraqi Freedom (OIF). Such wars are unique in the level of uncertainty inherent in the decision-making process leading up to them. By contrast there is usually little question that a nation at has at least a prima facie just cause in repelling an open conventional attack. Although the Iraq war is ongoing, the lessons we learn from evaluating the uncertainty we faced before waging it will be helpful in future decision-making. There is talk now of preemptively striking Iran before it become capable of nuclear warfare. Proponents of such a strike make arguments strikingly similar to those we heard before the OIF. They claim that Iran has “solid links to terrorist organizations,” and Iranian leaders would likely provide those terrorists with nuclear weapons[7]. As Yogi Berra said, “it’s déjà vu all over again.”

Although we, as philosophers, are interested in the theoretical principles of the just war tradition, analysis of historical examples facilitates the investigation of the principles. In this case, OIF will serve as the backdrop for our analysis of the problem. But the focus of the paper will be on the principles themselves, and I make any reference to the current war only in order to elucidate those principles. Finally, I will not make a judgment of justice or injustice in the resort to this war.

The tradition of just war thinking is an ancient one beginning at least as far back as Aristotle through Saint Augustine, Saint Thomas Aquinas, and still interests philosophers today. From this tradition, we inherit some useful principles to guide leaders of a nation in determining when they are justified in initiating armed conflict against another nation—or jus ad bellum. These include: 1) the nation’s cause must just; 2) the nation considering a just resort to war must have established and follow a legitimate authority to declare war; 3) statesmen must to resort to war with right intention; 4) the nation must use means that are proportionate to the injustice that it is attempting to prevent; 5) leaders must exhaust peaceful means to resolve the conflict leading to the war; 6) and finally, the nation waging the war ought to have a reasonable expectation of success.[8] Most consider the question of just cause to be the most important of the list, and I will limit my analysis to this one.[9]

At first glance, this list appears to be quite useful and reasonable, but in order for this list to be useful to national leaders that wish to ensure that they are just in waging a war, these criteria must offer a way to analyze information available them. This list of criteria should not only be a hindsight tool allowing an international court to establish whether a nation was justified in waging a war, but it must allow a nation to determine whether it is justified in its decision to declare war before it does so. Given this expectation, it becomes clear that though this list of criteria is an accurate guide to justice, a great deal of uncertainty arises when national leaders try to determine whether a particular situation meets these criteria prior to waging an anticipated war. “There are…serious difficulties of perception and information (in war and politics generally), and so controversies arise over ‘the facts of the case’” even when aggression has clearly occurred and a nation justly responds.[10] This problem magnifies greatly when a nation faces the threat of international terrorists and considers preemptively striking nations that support these terrorist organizations.

Despite the overwhelmingly efficient information technology currently available to decision makers, there remains a significant amount of uncertainty in the intelligence a nation can gather regarding the threat that another nation represents. A nation’s ability to manage and overcome this inevitable uncertainty will ultimately determine whether or not specific preemptive strikes are justified. So the ultimate purpose of this paper is to provide decision makers with a useful understanding of the application of the criterion of just cause, but this updated understanding will result be the result of a detailed philosophical analysis.

Although the just war tradition is concerned with two aspects of war, jus ad bellum (justice in deciding to resort to war) and jus in bello (justice in fighting the war),[11] this paper will primarily be concerned with the former. But the two veins of thought intersect often. For example, once a country has decided to wage a just war, its ability to fight it justly will ensure its final outcome is just. Conversely, failure to fight a war justly can and will quickly render a previously just cause insignificant. And jus in bello considerations directly impact on at least two of the jus ad bellum criteria: proportionality and likelihood of success. They both require estimation of losses in each course of action and the way a just nation decides to fight the war (in bello) will determine whether they can meet these two requirements.

Undoubtedly the absolute pacifist will find this analysis unconvincing, perhaps the moderate pacifist (or the proponent of nonviolence)[12] will find it illuminating. My target audience includes those who seemingly endless demand more information before considering a proposed war justified. We must refine the theory to work without the privilege of fully defined facts in international conflict because we only have these facts (maybe) after the conflict is resolved. The demand for absolute certainty prior to waging justified preemptive strike against nations that materially support terrorism can be paralyzing and can expose a nation’s citizens to an unacceptably high risk of effective terrorist strikes.

§2 Uncertainty in the JWT Criteria

This investigation will primarily be an exercise in practical philosophy with some application of particular theories of knowledge, but will not become attempt at applied epistemology. The attempt to remain in practical arena becomes a delicate balancing act; we do not want to become so unaware of philosophical theory that the exercise is no longer informed by reason. We want a theory that is both grounded in reason and practically useful. We cannot define our criteria so that they are too difficult for real-world policy makers to use or else they become useless. To do so would likely make the whole effort so burdensome that leaders would not even consider using the theory.

Uncertainty in the decision to resort to a preemptive use of force results from imperfect or incomplete intelligence of the “enemy” available to the leaders of a nation considering war. But there is a danger in waiting for absolute certainty that an attack is imminent before preemptively striking nations that support international terrorism; if national leaders wait too long, they will miss the opportunity for an effective preemptive strike. Leaders can become trapped in difficult spot—the longer they wait for certainty, the more vulnerable they become and the greater the likelihood of an attack on the one hand. On the other hand, if they make a hasty and poorly informed decision, they may fight an unnecessary war. How do decision makers know when the criteria have been met in light of the uncertainty they will encounter? This is the question we will seek to answer.

Before analyzing the criteria individually, we need to establish some fundamental differences that the current war on terrorism brings to the investigation in general. These differences will impact a nation’s management of uncertainty in the decision to wage a preemptive war. The application of the criteria to terrorism is not difficult; we will find that it violates JWT at the most fundamental level. The problem we will find is determining a just response to terrorism because the structure and intent of terrorist organizations defies traditional just war assumptions about the agents involved in war.

Walzer defines the purpose of terrorism as the attempt “to destroy the morale of a nation or a class, to undercut its solidarity; its method is the random murder of innocent people.”[13] This form of warfare is fundamentally different from conventional war because its perpetrators violate one of the fundamental just war principles: the principle of discrimination. Terrorists intentionally target noncombatants. The JWT only allows for the intentional targeting and killing of combatants. Terrorism clearly violates this principle by expanding the battlefield to include the noncombatant civilian population at large; it is no longer “combat between combatants,”[14] a concept upon which JWT is founded.

Essentially terrorism is a form of barbarism, and “[s]tate sponsored [or supported] terrorism is incompatible with the international stability”[15] because terrorist organizations violate the fundamental assumptions of international relations. The current world order among nations assumes (and requires) a sense of cooperation among nations for the common good of all nations. Zupan observes:

Terrorists proclaim by their actions their unwillingness to abide by any laws or social conventions. They recognize no proscriptions or constraints, or any authority over them such that it would bind them as members of communities committed to a cooperative quest for peace. The struggle against them is in this respect like domestic law enforcement against depraved, violent criminals who violate state law…Terrorists represent a rejection of community. In a very deep sense, their ideology is logically incompatible with the idea of cooperative human venture, either in its civil or international forms. In so doing they deny the legitimacy of states, they deny the rights of people to carve out a shared life, they deny the unique importance of individual human beings, and ultimately they deny morality. The really are like Locke’s savage beasts, predators with whom coexistence is unthinkable.[16]

This new characterization of terrorist organizations as international entities will present some significant problems to the JWT because we cannot negotiate with terrorists in the same way that we do sovereign nations. They do not respond to the reasoned discourse that allows international relations to occur. Terrorist organizations are criminal factions that do not respect national sovereignty. To deal with these criminals, Zupan recommends combining the principles of the JWT with those of domestic law enforcement[17] and crime prevention. “Neither model—just war or law enforcement—individually adequately captures the moral reality of the war against terrorism.”[18] Only when we combine the two, do we find a useful model for dealing with terrorism.

But in order to justify this combination, we need to find the link that connects them and we find it if we consider where the moral force of the theory of just lies. That link is the our assumption that the intuitions that guide JWT are similar to the ones that guide our thinking in domestic law enforcement. The two arenas are analogous; the interaction of nations resembles that of individuals. And this individual interaction is governed by the domestic law enforcement analogy; like terrorists, criminals within states reject the sovereignty of the governing body and we must resort to law enforcement to deal with them.[19] But they are not equivalent and we will have to consider the points of dis-analogy and make reasoned adjustments to JWT as necessary.

There is, of course, the objection that lack of international police force illegitimatizes the analogy between JWT and domestic law enforcement. But despite the apparent dis-analogy, “the justification to use force in either realm follows from deep moral principles, having to do with resistance to unjust coercion [which international terrorism represents], that transcend the civil/international distinction.”[20] We might look at it this way: if we accept the validity of our intuitions about the justice of the use of force in domestic law enforcement, those intuitions are still valid even if we find ourselves in a country where the police force is unable to effectively enforce the law. In fact, in such a state, perhaps we ought to allow the use of force by individuals to enforce the law when there are no police to do so. Likewise in the international community where there is no effective world government and police, individual nations are justified in enforcing the law or justice through the use of force.[21]

Achieving resolution of these new challenges rests on our ability to manage the uncertainty involved. Terrorist organizations undoubtedly know that nations will be constrained by the uncertainty inherent in pursuing terrorist groups that do not directly represent governments. They have likely chosen their strategy in order to use this uncertainty as protection. Unless a just nation can properly manage this uncertainty, it will not be able to combat terrorists effectively. So I will present an analysis of the criterion of just cause in terms of traversing this uncertainty without surrendering the advantage of preemption.

§2.1 Just Cause

Defense against aggression is the only cause that justifies a nation’s resort to war against another nation.[22] The domestic analogy is useful in understanding this restriction; individuals are only justified in using force to protect themselves from aggression such as robbery or murder. Like the individuals in a state, individual nations in the international community can only claim justice if the use of force is intended to repel aggression against itself or nations with which it is allied. There is relatively little uncertainty in establishing a just cause when there is outward aggression between nations; once a nation has openly attacked another, it is clear that the aggressor is unjust and the victim is justified in responding with force.[23]

Since this criterion confines just wars to defensive ones only, it might seem to prima facie imply that a nation must wait until openly attacked before use of force is justified; but let us consider what counts as a defensive war. Preemptive strikes count as defensive under certain conditions. “Preemptive action is ‘defensive’ when it is motivated by a reasonable belief that a proven aggressor is equipping himself with the means to carry our further aggression with impunity.”[24] Or as Walzer puts it, “Both individuals and states can rightfully defend themselves against violence that is imminent but not actual; they can fire the first shots if they know themselves about to be attacked.”[25] As long as there is an impending attack, conducting a preemptive attack is warranted.

The reason we do not require nations to wait until openly attacked to respond lies in the previously discussed analogy between individuals and states. In domestic crime prevention, a person threatened by a criminal does not have to wait until the attacker has accomplished his goal. If the victim were required to wait until a criminal shoots him, it would be too late to prevent the attack. We might call this the demand for a “smoking gun,”[26] but this is an unreasonable requirement. The demand for a smoking gun requires that the aggressor has already fired the gun (otherwise it wouldn’t be smoking). The aggressor’s action, in pointing the gun at the victim, is an act of aggression in and of itself, which warrants a defensive action by the victim. The fact that a defensive action, such as striking the aggressor, can appear offensive (when it occurs) does not render it illegitimate.

Likewise in the current war on terrorism, the possibility that international terrorists—bent on inflicting maximum noncombatant casualties—gaining access to nuclear, biological and chemical weapons renders this demand is too rigid. If a national leaders wait for an attack with these types of weapons there may not be a chance for defense and they will have failed their responsibility to protect the citizens. Regan clearly states this reasoning:

Nations whose citizens are targets of terrorists at home and abroad may have just cause to use military force [for example preemptive strike] to prevent or deter foreign governments from lending such support and to destroy terrorist bases in foreign countries. As in the case of resisting armed attacks by aggressor nations, victim nations need not wait until foreign-based or foreign-supported terrorists actually attack nationals before they have just cause to use military force against nations harboring or supporting terrorist organizations and activities. But victim nations taking military action against nations abetting terrorists need to have moral certitude [italics added] that the latter nations are in fact linked to terrorist acts against the victim nation’s nationals. Such military action would be defensive insofar as its purpose as its purpose is to destroy terrorist bases and to deter guilty nations from continuing to harbor or lend support to the terrorists.[27]

This puts the onus on the would-be-victim nation to have “moral certitude” that the nation it plans to preemptively strike is, in fact, linked to terrorist organizations and activities. Obtaining this certitude presents the problem for decision makers—how much uncertainty can we allow and still be justified?

Let us consider a nation that has been the victim of and has reason to believe that it will suffer future international terrorist attacks, such as the United States following the terrorist strikes on 9/11. That nation will have one just cause: to prevent further attacks. But accomplishing that objective can have at least two components: the response with armed force against those currently executing or actively planning such strikes, or preemptive strikes against those who actively support those groups. But before that nation can accomplish either of these goals, it must correctly determine whether there is a threat.

Establishing this threat requires careful identification of real and credible threats otherwise leaders might resort to, as Walzer warns us against, preventive wars rather than genuinely preemptive ones. We must not allow the perception of just any threat to justify war; such a policy would destabilize the peaceful cooperation among nations. We can imagine examples of threats that would not warrant the resort to war; if a unit of the Canadian Army crossed the border into North Dakota while in pursuit of animal poachers, we would not (we hope) resort to war with Canada. The threat must be real, imminent, and significant. But determination of an imminent threat is fraught with uncertainty; how does a country know that another in fact, imminently threatens it? Walzer suggests that, “The line between legitimate attack and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat.” A nation must show that its opponent displays “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 anything other than fighting greatly magnifies the risk.”[28]

Uncertainty in establishing this sufficient threat presents a great challenge to decision makers considering preemptive war. But when managing that uncertainty, we must remember that we can only hope to have probable knowledge rather than strictly certain knowledge of sufficient threat. Only when the threat is actualized in the form of an open attack is there the possibility of absolutely certain knowledge, and with the threat of potent weapons of mass destruction (WMD), waiting for such a blatant attack can be disastrous for a just nation. It would be unreasonable to demand that a just nation wait until it endures a nuclear, biological, or chemical strike before it preempts the threatening nation. Such is the nature of practical philosophy, of which political philosophy (and therefore JWT) is a part.

National leaders can have certain knowledge of some aspects leading to the decision and only probable knowledge of others. For example intelligence information can establish the existence of WMD that a belligerent nation could be used against them, but possession of is not enough to justify war. The belligerent nation must indicate through its actions that it plans to use those weapons against another in order to provide justification for a preemptive strike. Support of international terrorism represent such an action, but in order to qualify for preemption, the links between a nation’s leaderships and terrorist organizations must be more than merely a small number of degrees of separation between. There must be evidence of a nation’s material support. Such support might include (but need not be restricted to) a state’s provision of the following to international terrorists: significant financial support, safe harbor from international authorities, training areas for terrorists, and most importantly illegal weapons (WMD) that improve the effectiveness of their strikes against noncombatants. Mere verbal support for terrorism by a nation’s leaders (or even its citizens) would not justify a resort to war.

An example of a fairly straightforward preemptive strike is the US attack on Al Qaeda and the ruling Taliban in Afghanistan. Certainly it is an example of a just response to armed aggression,[29] but the US waged Operation Enduring Freedom in order to disrupt Al Qaeda’s ability to conduct another strike against US noncombatants as well. So the action is preemptive in nature as well as responsive. But the war the US waged against Iraq is far more difficult to evaluate. Since Iraq was not openly waging a direct attack on the US, the attack is a war of anticipation.[30] The US administration claimed that Iraq represented a real, imminent, and sufficient threat to US citizens. Without a doubt, there was a great deal of uncertainty that Iraq represented a threat before the US decided to wage war, but what are we to make of that uncertainty? Was it enough to render the US decision unjust?

To answer these questions, let us apply Walzer’s criteria for justified preemption to pre-OIF Iraq. Although in hind-sight it is clear that Iraq likely did not have significant amounts of WMD, there was little disagreement prior the war that Iraq did in fact have them.[31] The primary debate among nations and policy makers seems to have been how to deal with Iraq considering the likelihood that it still possessed (up to the time of the initiation of hostilities). Even if Iraq had possessed these weapons, possession of WMD is not enough to warrant a preemptive strike. If it were, then the US would be justified in preemptively striking any nation possessing such weapons, and that seems clearly false. The US would not, for example, be justified in attacking, say, China or Pakistan, which both possess WMD. So in order to represent a sufficient threat, Iraq would have had to manifest an intent to injure the US using these weapons in order for the US to have justified in preemptively striking Iraq, show some active preparation to strike the US. Finally, there would need to be evidence that the US could not wait any longer with out greatly magnifying the risk.

To ensure its cause was just, the US did not rely only on Iraq’s aggressive reputation. Prior to the US decision to resort to a defensive (albeit preemptive in form) war against Iraq there was a concerted effort to establish Iraq’s threat to the US. The argument focused on Iraq’s support of terrorist groups. The US made its case for this link to terrorism by providing a statement through the Secretary of State to the UN on February 5, 2003 revealing Iraq financially supported terrorist acts (for example paying the families of suicide bombers in Palestine to compensate the loss of a loved one), provided training facilities on its nation’s soil,[32] harbored known terrorists from the international legal system.[33] Even though Iraq illegally possessed WMD, the real threat lay in the assumption that Iraq intended (and was able) to secretly provide these weapons to international terrorist organizations that would in turn use them against the US or its allies. Had the US allowed this to occur, then it would have been unable to prevent the use of these weapons against noncombatants because terrorist organizations would not respond to negotiation; as we established earlier, negotiation is not possible with these groups.

Iraq’s material support of international terrorists represented a manifest intent to injure. If Iraq had provided weapons to these terrorists, it would have displayed a degree of active preparation. This is where the uncertainty arises. The US was unable to prove ahead of time that Iraq had, in fact, shared these weapons with terrorists. In order to be justified, a nation must show that the state it plans to preemptively strike meets all three of the criteria. Walzer would claim Iraq did not, and US action is therefore unjustified. But there is a problem with this analysis; if Iraq had succeeded in providing WMD to terrorist organizations, there would be little (if any) chance for the US to protect itself against extremely effective attacks by the terrorists armed with WMD. Iraq could very easily have provided such weapons without US knowledge thereof. If it is possible and likely that Iraq would and could do so, then it seems unreasonable to require the US to wait until it could prove such a transaction could occur. It seems that waiting for such proof unnecessarily magnifies the risk (criterion #3). The US therefore met 2 of the three criteria, and requiring all three seems unjustified in this case. The uncertainty regarding the intent Iraq had is the problem we must overcome in order justify US action in Iraq. [34]

The uncertainty we find in determining the intent of a nation is similar to another sort that we confront in conventional war; we cannot know for certain that every enemy soldier intends to fight for his country and endanger friendly soldiers. This is a moral problem that threatens to undermine the justice (jus in bello) of killing particular soldiers. Friendly soldiers and commanders are never certain whether a particular enemy soldier has been pressed into service by his government and may therefore never fire his weapon. Such a soldier will likely never shoot at our soldiers because he is a pacifist, or he disagrees with his government’s belligerent policies. So it might seem that if, as a matter of just war-fighting, we kill a such a soldier, we have committed an immoral act. But such a mistake represents an epistemological one, not a moral one.[35] We must make some universal assumptions about the roles individuals play on the battlefield.[36] Enemy soldiers generally shoot at friendly soldiers, and friendly soldiers and commanders must assume, in the name of force protection, that all enemy soldiers will engage friendly ones with force. We could not fight an effective war without making such an assumption,[37] and we are certainly just in shooting at the enemy despite this uncertainty.

Perhaps the uncertainty we find in determining the intent of a particular nation can be similar to that of individual soldiers. Of course, the practical and moral consequences of waging a war with another nation are far more significant than those we face if we shoot an enemy soldier ignorant of his pacifism. The roles of nations are far more complex than those of individual soldiers, and we must make every effort to determine those roles and intentions of nations, but there comes a point when we must cut off the deliberation process and accept that a nation is a threat. If a nation has proven its antagonism toward other nations and waged wars against them in the past, then that is a reason to believe it will continue to do so. If a nation has used illegal weapons (e.g. chemical) on his neighbors and his own citizens, there is reason to believe he will do so in the future. If a nation refuses to respond to the directives of the UN and continues to violate UN mandates, then that nation has proven that it refuses to be a dedicated member of the cooperative international community. There is uncertainty only determining when and where such a nation will strike.

It is reasonable to assume that a nation with such an aggressive and militant status has established its role as a rogue state that threatens those nations that oppose it. In other words, such a nation has established its role as an enemy of the world community, and friendly nations are justified in making assumptions about its intentions. Iraq displayed all of these belligerent characteristics (and more) and thereby invited US suspicion. The US was therefore justified in assuming the Iraq’s high leadership intended to disrupt international peace. In fact the international community, by enacting UN resolutions like 1441 requiring Iraq to disarm, implicitly recognized Iraq’s status as a rogue nation and thereby assumed that Iraq would disrupt the world community given the chance. Such an assumption is evident by the fact that international community agreed to prohibit Iraq from obtaining or maintaining WMD. Consider again the domestic analogy. When a person has proven himself to be belligerent to his neighbors, the court can (and should) revoke his right to own particular weapons. If the court finds reason to believe that he has obtained those prohibited weapons, then the court is justified in searching, disarming (through force if necessary), and perhaps, incarcerating that individual for failure to abide by the legal restrictions the court placed upon him. Iraq is the national equivalent to such a person. Iraq’s actions as a rogue nation nullified the uncertainty about its particular intentions toward the US.

Of course this analysis will induce a number of objections the first of which might be the claim that labeling as preemption a war of anticipation against a rogue nation on such flimsy evidence violates Walzer’s three aforementioned criteria. To do so renders such a war preventive rather than preemptive, and preventive wars are always unjustified.[38] But this framework assumes a community of nations in which we may negotiate and have reason to believe we may resolve disputes without the resort to war. It also assumes that the primary threat nations must evaluate is that between states. But we are discussing the heinous acts of international terrorists that operate outside the realm of international statehood. Under Walzer’s framework, our intelligence assets should be able to tell us when a nation is preparing an attack against us, but because terrorists enjoy the privilege of secrecy and subterfuge, rogue nations may support these organizations without a producing significant amount of evidence to tie them to such organizations. Walzer’s assumption is that we will be able to see another nation building its combat power in order to strike us. But support of terrorist organizations can (and does) occur in secret and we may only find the evidence after an effective strike.

Walzer’s criteria are not effective in fighting against organized international terrorists that do not have to operate in the arena of international politics where they must liaise with the entire international community in order to survive. These terrorist organizations can survive on the support of a few nations and execute their illegal attacks without suffering the effects of sanctions that a nation would endure if it were to act in such a manner. Along with law enforcement against these terrorists, another effectively strategy to fight them would be to eliminate their support structure. If a nation is a rogue and materially supports these terrorists, it is part of these terrorists’ support structure and might warrant preemptive strike depending upon its role in the world community. If such a supporting nation has established itself at odds (as a rogue) with the world community, then its support of terrorists can make it a legitimate target of justified preemption.

Another objection related to the last one is that relaxing the criteria for just war is dangerous; it unnecessarily assumes malign intent of other nations.[39] Or to put it another way, the analogy between enemy soldiers and rogue nations is a false one because during times of war, it is reasonable for commanders to assume that enemy soldiers do intend to harm us, but the international arena is different. We are not always at war with the nations of the world, so making such assumptions produces unnecessary wars. But we do not assume malign intentions; we base our estimation of a nation’s threat on facts (perhaps in the case of Iraq, these were not accurate). A nation like Iraq establishes its harmful intentions through its history of aggressive actions and its current failure to cooperate (apparently supporting terrorists, setting themselves at odds with the world community). In the case of Iraq, we did not assume malign intentions; Iraq established them.

Perhaps referring back to the domestic analogy and crime prevention will help make sense of this response. Police officers are not justified in assuming everyone has criminal intentions, but they are justified in keeping a close watch on those who have proven themselves to be belligerent. This is what parole officers do. So just nations in a law-enforcement role, such as the US (since there is no world police force), is justified in closely watching and demanding rogue nations like Iraq adhere to the laws (in the form of UN resolutions). When rogue nations fail to respond to the law, just nations are justified in enforcing the law. The US would not be justified in taking such action against any nation it pleased, only rogue nations.

A final criticism of US action in the face of such uncertainty regarding Iraq’s intention is the claim that the US cause is unjust because the evidence leveled against Iraq is “old news.” Iraq has been guilty of all the charges since at least 1998 if not earlier,[40] and since the US did not act then, the threat must have been and is, therefore, still insufficient to warrant the resort to war. But such a conclusion does not follow; we can trace the failure to act in 1998 the level and nature of terrorist action at that time. The previous administration had not witnessed the resolve of terrorist organizations to wage an extremely effective, well-coordinated attack on US citizens like the one that occurred on September 11, 2001. The current administration reevaluated the evidence against Iraq in light of the developments in terrorist strategy. Just as new evidence is cause to open a closed court case, the events of 9/11 caused the US to reconsider the threat that Iraq poses to its citizens. The current administration’s final assessment was that, although there was uncertainty with regard to a specific impending threat by Iraq, which prevented action earlier, the newly realized resolve and ability of terrorists to strike on US soil outweighed that uncertainty. The result of its newly informed analysis was the decision to preemptively strike a belligerent Iraq and prevent its material support of international terrorism.

§3 Conclusion

During our analysis of the just cause criterion, we have found that a preemptive strike against a nation that materially supports terrorist organizations is justified under certain circumstances. If that belligerent nation has proven to be bent on waging war on other members of the international community and fails to adhere to the resolutions of the UN, then it has removed the staying hand of uncertainty. Combine this status with the hard evidence that such a nation produces WMD and materially supports international terrorism and there is a just cause to wage a war to prevent further (and likely more effective) terrorist strikes. Nations like the US that have been the victim of the terrorist organizations that have benefited from such support have a just cause to disarm those rogue nations like Iraq in the name of international peace and stability

Let us review our conclusions in the face of the inevitable uncertainty we find when considering a preemptive strike. Walzer’s criteria for a justified preemptive strike are accurate for evaluating threats among nations, but are not effective in fighting the new threat of international terrorism. I have recommended that we revise Walzer’s criteria for justified preemption to include rogue nations that we suspect of providing WMD to terrorist groups. But in order to avoid waging heedlessly against minor threats, we ought to have a definition for rogue nation/state. Rogue nations (such as Iraq) actively and dangerously oppose the process of international cooperation; we are not required to give such nations the benefit of the doubt if we have reason to believe they will provide WMD to international terrorists.

Iraq did not simply violate a UN resolution, it violated many over an eleven year period. It was guilty of aggression against neighbors. Iraq was known to have WMD in the past, for it used them against neighbors and his own citizens. Iraq sought to revitalize its WMD program including the addition of nuclear weapons.[41] It still threatened its own people in northern Iraq requiring coalition enforcement of the UN approved no-fly zone.[42] These sorts of actions set a nation and its leadership at odds with the rest of the world making it a threat to the peaceful cooperation between states. Any one of the actions above certainly would not make a nation a legitimate target of preemption, but the combination of them all seems to lower the threshold of certainty we must have to warrant a strike.

Regarding the threat that Iran represents, a great deal more work need to occur to show that Iran fits the description of rogue nation. Experts seem to agree that Iran does actively support terrorism, but its leadership does not display the same reckless abandon in its policies toward other nations that Iraq has in the recent past. So until Iran does demonstrate its status as a rogue, the standard of certainty the US (or any other nation for that matter) must have to warrant a justified preemptive strike is much more stringent than the standard it had of actual Iraqi intent to threaten the US.

Bibliography

Anderson, Richard C. “Redefining Just War Criteria in the Post 9/11 World and the Moral Consequences of Preemptive Strikes.” Joint Services Conference on Professional Ethics. Available from <http://www.usafa.edu/isme/JSCOPE03/Anderson03.html>. Accessed 21 March 2003.

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________“Letter CLXXXIX,” in The Works of Aurelius Augustine Bishop of Hippo,

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Ramsey, Paul. The Just War: Force and Political Responsibility. New York: Charles Scribner’s Sons, 1968.

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Weigel, George. Tranquillis Ordinis The Present and Future Promise of American Catholic Thought on War and Peace. New York: Oxford University Press, 1987.

________“Moral Clarity in a Time of War.” First Things, January 2003, 20-27.

Younes, Robert. “Brookings Panel Examines Iraq’s Weapons Declaration.” The Washington Report on Middle East Affairs, Washington, March 2003, 71-72.

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NOTES

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[1] The views expressed in this paper are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

[2] I have adapted this essay from the masters report that I wrote in pursuit of my degree from University of Texas at Austin in 2003.

[3] George Weigel, “Moral Clarity in a Time of War,” First Things, January 2003, 22.

[4] Terrence K. Kelly, “What’s a ‘Just War’ These Days?” Pittsburgh Post-Gazette, February 16, 2003, sec. 1, p. 12. Mr. Kelly is a senior researcher in the Pittsburgh office of RAND Corp.

[5] In some ways this challenge is old, for pirates presented governments with similar problems in previous eras.

[6] Essentially I am not going to attempt to convince hardened pacifists that war in general is ever justified. This argument is addressed to those who already accept the legitimacy of the theory generally and I hope to broaden the understanding of the theory to the modern battlefield.

[7] For an example of such a discussion, see James Fallows’ article, “Will Iran Be Next?” Atlantic Monthly, December 2004, 99-110.

[8] Richard J. Regan, Just War Principles and Cases (Washington D.C.: The Catholic University of America Press, 1996), 17-18.

[9] In my original essay, I consider the impact of uncertainty on all six, but for the purpose of adhering to the JSCOPE guidelines of keeping the essay readable in 30 minutes, I have trimmed it down to the most important criterion.

[10] Michael Walzer, Just and Unjust Wars, 3rd ed. (New York: Basic Books, 1992), 12.

[11] More recently philosophers have added a third aspect: jus post bellum (justice after the war).

[12] George F. Weigel writes, “Nonviolence and pacifism are often equated; but they are distinct” in Tranquillitas Ordinis, (New York: Oxford University Press, 1987), 245.

[13] Walzer, 197-206.

[14] Ibid, 42.

[15] Weigel, Tranquillis, 382.

[16] Daniel S. Zupan. War, Morality, and Autonomy (Cornwall, Great Britain: Ashgate Publishing Ltd., 2004). 149-150.

[17] Zupan only uses the term law enforcement, but that locution can be misleading. The term law enforcement tends to imply mainly retributive justice, but I will later establish that right intention does not allow for retribution by one nation against another. So when I use the term law enforcement, I will have in mind the crime prevention aspect rather than punishment.

[18] Ibid, 145.

[19] Zupan cites, at 146, this quote from Walzer to support this assertion, “The comparison of international to civil order is crucial...Every reference to aggression as the international equivalent of armed robbery or murder, and every comparison of home and country or of personal liberty and political independence, relies upon what is called the domestic analogy. Our primary perceptions and judgments of aggression are the products of analogical reasoning. When the analogy is made explicit…the world of states takes on the shape of a political society the character of which is entirely accessible through such notions as crime and punishment, self-defense, law enforcement, and so on.”

[20] Ibid, 146.

[21] This conclusion is not, of course, unique to the problem of preemptive strikes against nations that support terrorism. The fact that there is no effective world government and police is the reason for war between nations in general.

[22] Walzer, 62.

[23] Of course this assumes that a victim nation has not provoked an attack somehow. Establishing just cause may seem to require establishing an absolutely innocent victim and an absolutely unjust aggressor, but this rarely is the case. Nearly always both the victim nation and the aggressor nation are guilty of some injustice toward one another. When establishing a just cause in cases where both nations have some guilt in the matter, it becomes a task of establishing relative justice. The intentional killing of non-combatants, as the terrorists did on 9/11, is explicitly prohibited in the war convention and JWT. Even if those who perpetrated that attack had legitimate complaints with the US (which may be the case), their actions were still not justified. Any just cause they might have claimed was nullified by targeting of noncombatant civilians, which equates to murder. The US is certainly justified in responding to this injustice.

[24] Robert George. “…A Just War in Iraq,” The Wall Street Journal, 12 December 2002, sec. A, p. 14. Mr. George is a professor of jurisprudence at Princeton University.

[25] Walzer, 74.

[26] Richard C. Anderson. “Redefining Just War Criteria in the Post 9/11 World and the Moral Consequences of Preemptive Strikes,” Joint Services Conference on Professional Ethics; available from <http://www.usafa.af.mil/ jscope/JSCOPE03/Anderson03.html>; accessed on 13 March 2003, 20.

[27] Regan, 53-54.

[28] Ibid, 74-81.

[29] For an in-depth study of the justice of the U.S. response in Afghanistan, see Zupan’s paper. Since he has established the justice of that action, my interest is in investigating the justice of the US war with Iraq.

[30] Walzer uses the term war of anticipation to describe a nation that starts a war based on suspicion that the recipient of its attack represents a threat.

[31] See the following articles: Daryl G. Kimball, “At the Crossroads on Iraq,” Arms Control Today, March 2003, 2-4; and Robert Younes “Brookings Panel Examines Iraq’s Weapons Declaration,” The Washington Report on Middle East Affairs, March 2003. 71 & 72.

[32] This was confirmed as US forces discovered the Ansar al Islam terrorist camp in northern Iraq and the Salman Pak terrorist training camp south of Baghdad during the opening days of OIF. See Sebastian Rotella, “After the War/Terrorism’s Reach; a Road to Ansar Began in Italy,” Los Angeles Times, 28 April 2003, sec. A, p. 1; and “Iraq and Al Qaeda,” Wall Street Journal, 14 April 2003, sec. A, p. 18.

[33] Colin Powell’s address to the UN, available at <http://whitehouse.gov/news/releases/2003/02/print/20030205-1.html>; accessed 19 March 2003.

[34] As a side note we should consider the criticism that there were no credible links between Saddam Hussein and Al Qaeda. This claim seems to be true; any links between them were sketchy at best. But since the war we waged against Iraq was meant as a preemptive strike, such a link was not necessarily required. The US was not retributively striking Iraq for its involvement in 9/11 attacks; it was attacking to prevent or stop any support that Iraq might have lent to any terrorist organization, especially any that might strike the US in the wake of 9/11. The US sought to prevent any terrorists that might have gained courage and to strike from the dazzling success of those attacks. Also some claim that there was no reason to believe that Bin Laden would ever ally his organization with such a “secular” regime as Hussein’s, but this is an unreasonable assertion if we consider the possibility that common enemies can make allies of sworn enemies. Recall that the US was allied with the USSR during World War II. So it is not a good assumption that Bin Laden was not allied with Hussein for religious reasons.

[35] Obviously certain epistemological failures carry some moral weight to them. For example intentional ignorance can cloak wrong intentions, but I am assuming the nations involved are making every attempt to make proper determinations of guilt. In such cases, if a nation has made every effort in good faith to obtain all possible information, an epistemological error does not carry the moral guilt associated with intentional ignorance.

[36] This discussion of roles that particular soldiers and nations play and the assumptions we make about them is the result of correspondence with Daniel Zupan on or about March 2003.

[37] Imagine soldiers attempting to ascertain whether the enemy soldiers were unwilling draftees by, say yelling back and forth across the lines. This would render some of the most effective tactics such as ambushes, raids, and envelopments (all of which depend upon speed and surprise) impossible.

[38] Walzer 76-80.

[39] Ibid, 77.

[40] Anderson, ¶ 12.

[41] Charles Duelfer, Key Findings of Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD, Central Intelligence Agency [Web site]; available from http://www.cia.gov/cia/reports/iraq_wmd_2004/; accessed 29 December 2004, 1.

[42] Threatening its own citizens only indirectly supports preemption against Iraq. It is part of the overall portfolio of criminal activities that made Iraq a rogue nation.