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Preemption, Prevention, and the Just War Tradition
Douglas McCreadyPennsylvania Department of Public Welfare
Kutztown, PA [email protected]
Since September 11, 2001, the 2002 US National Security Strategy,
the subsequent invasion of Iraq, and concerns about Iran’s nuclear
program have reopened discussion about the conditions under which a
nation may justly go to war (the 2002 attack on Afghanistan raised a
different set of questions). One result of this has been a veritable
flood of journal articles, op-ed columns, and books about preemption
and preventive war. Unfortunately, not only have the authors reached
widely divergent conclusions, but they have defined their terms in
such different ways that they often are talking past one another.
Also, far too often, conclusions appear to have been driven by
political agendas.
The just war tradition, which underlies much of the international
law of war, has spoken relatively clearly in the past to the question
of when going to war is justified. I submit that that tradition
remains relevant, even normative, although some uniquely modern
concerns do need to be addressed. The tradition also distinguishes
between issues that have been confused in recent discussion.
I begin by defining the key terms of the discussion, namely
preemption, preventive war, and anticipatory self-defense, and
offering historical examples of the first two terms.1 Then I will
evaluate these approaches in terms of the jus ad bellum (go to war)
criteria of the just war tradition. (Although preemptive and
preventive strikes can occur during a war, I will be considering only
ad bellum actions.)2 Finally, I will consider the status of non-state
actors such as al-Qaeda and suggest a just war understanding of how
such groups may be dealt with that does not require the categories of
preemption or preventive war. Along the way, I will also discuss
“rogue” states and the role of weapons of mass destruction (WMD).
Although the debate is usually presented in the language of
preemption, it is for the most part about preventive war. The reason
for the linguistic confusion seems to be that while preemption is
sometimes justified, preventive war is considered aggression both by
the just war tradition and international law.
The Department of Defense (DOD) Dictionary of Military and Associated Terms
(2008:428) defines preemption as “an attack initiated on the basis of
incontrovertible evidence that an enemy attack is imminent.” It is
like walking down the street in a late 19th century wild west town and
seeing a lifelong enemy walking in your direction and yelling that
he’s going to kill you as he reaches for his gun. You draw your gun
more quickly and shoot him. That’s preemption. You have the evidence
of a hostile and potentially deadly action directed at you (capability
plus intent), a long-standing history of enmity, and imminence of
attack. The classic statement of the right of preemption (narrowly
construed) is found in Secretary of State Daniel Webster’s 1841 letter
to the British ambassador after British troops attacked the American
ship Caroline in US waters because the Caroline was being used by private
citizens to assist Canadian rebels against the British government.
Webster wrote that legitimate preemptive force must be “instant,
overwhelming and leaving no choice of means, and no moment of
deliberation.”3 Webster’s language has been questioned in that “no
moment of deliberation” seems unrealistic if not irresponsible.
1Notes
? Hew Strachan argues that the meaning of these terms has changed over time
and according to the desires of policy makers seeking to make their policies
more widely accepted. He also notes that preemption began as a military
concept and preventive war as a political one although both are now used in a
political sense. He adds that “the vocabulary of preemption when applied to
preventive war created misplaced expectations.” (Strachan, 2007: pp. 23-39).
2 In an on-going war, as long as preemptive and preventive force do not
violate the in bello criteria of proportionality and non-combatant immunity,
they don’t raise ethical questions in the way they do prior to war.
Webster is often restated by saying preemptive action must be
immediate, necessary, and proportional.
Preemption requires that the enemy has the capability to fight a
war against you now, has been making threatening noises (intention),
and has begun to take military steps that should be understood as
preparation for an attack. Some steps an enemy might take are
ambiguous in that they can be interpreted either as preparatory to an
attack or as preparations to defend against an attack the enemy fears
might be launched against him in the near future. A heightened state
of alert and the first steps in mobilizing reserves are such ambiguous
actions. Historically, it is this ambiguity that has raised ethical
concerns about preemptive attacks.
Some international legal scholars argue that the preemptive use
of force violates Article 51 of the UN Charter. I believe this an
overly narrow and thus erroneous interpretation of the Charter. In
1945, when the Charter was originally signed, customary international
law had long held that states have the right of preemptive self-
defense. No national leader in his or her right mind would have freely
3 Webster’s letter and the rest of the Caroline correspondence can be found at
http://avalon.law.yale.edu/ 19th_century/br-1842d.asp#web1. It has been
suggested, I think correctly, that “no moment of deliberation” is precisely
what we do not want when the use of force is an option.
surrendered this customary right and no democratic nation would have
allowed its leader to do so. But even if this interpretation of
international law is legally correct, it is morally defective. One of
the fundamental responsibilities of government is to protect the
nation. The narrow interpretation of the UN Charter requires an
abdication of that responsibility.
Michael Walzer, in his classic Just and Unjust War, has offered a
less restrictive understanding of preemption. For Walzer, preemption
is justified when a sufficient threat (in contrast to an imminent
threat) has been demonstrated. This involves an obvious intent to
injure, active preparation by the enemy to attack, and a situation
where waiting significantly increases the risk of suffering great harm
(Walzer, 2000:81).
The historical example of preemption most commonly offered is the
June 1967 Israeli attack on its Arab neighbors. Israel had already
fought two wars against these nations during the preceding two
decades. In May 1967, Egypt blocked Israel’s access to the Red Sea,
which the Israeli government had previously declared would constitute
a casus belli. Meanwhile, Egypt, Syria, and other Arab neighbors of Israel
(all of whom had fought in those two previous wars against Israel)
loudly proclaimed their intention to destroy Israel and began to move
their armies toward their borders with Israel. Israel struck them
unexpectedly and soundly defeated them.
The Arab states’ actions confronted Israel with a dilemma.
Israel’s army consisted primarily of reservists. When it was
mobilized, much of the national economy shut down. So, unlike the Arab
states with their large standing armies, Israel could not remain on a
high state of alert for an extended period of time, but if it
demobilized, it then became vulnerable to attack by the concentrated
Arab armies. If Israel did not respond preemptively, it would have had
to either keep its reserves mobilized indefinitely and risk grave
damage to its economy or demobilize its reserves and risk devastating
military defeat. Despite some recent demurrals, Israel’s decision
constituted a preemptive attack (although not according to the Caroline
definition, since the situation developed over a period of a month)
against nations who had both expressed their desire to destroy Israel
and had repeatedly shown their intent to do so through military
actions.
On the other hand, the DOD dictionary defines preventive war as
“a war initiated in the belief that military conflict, while not
imminent, is inevitable, and that to delay would involve greater risk”
(2008: 432). To use another old western analogy, this is like seeing a
long-time enemy who has repeatedly expressed the desire to see you
dead coming up the street in your direction. When he sees you, he
turns and runs in the general direction of the local gun shop. Before
he can get there and buy a gun (you presume), you shoot him dead
because it will be far more dangerous if you are standing in the
middle of the street and he is inside the shop with a weapon, maybe
something bigger and more accurate than the six-shooter in your hand.
Alternatively, your bitter enemy is walking down that same western
street in your general direction on market day (because in the
international arena there are always bystanders) with a carbine slung
casually over his shoulder. Fearing that he may be intending to use
that weapon against you, you draw and shoot him before he can get it
off his shoulder and aim at you.
Many political scientists also understand preventive war as an
attempt to prevent a change in the international balance of power
detrimental to the state using preventive force. This has often
resulted from a desire on the part of the attacking state for absolute
security and what has been called “freedom from fear.” But seeking
absolute security and “freedom from fear” is a fool’s errand. In this
life it remains an unattainable dream, certainly not achievable
through preventive war. Nonetheless, despite its dubious legal and
ethical status, preventive force has been historically much more
prevalent than preemption.
The 1981 Israeli air strike on the Iraqi nuclear reactor at
Osirak was a preventive attack even though Israel described it as
preemptive. The reactor offered no imminent threat to Israel. Whatever
threat existed lay in the future. Israel’s attack was intended to
prevent Iraq from developing nuclear weapons that could threaten
Israel, not to beat Iraq to the draw in using nuclear weapons it
already possessed. In mitigation, Israel pointed out that it struck
the construction site on a day when it was least likely to be occupied
in order to avoid civilian casualties, that it struck before the
reactor was completed and loaded with nuclear fuel in order to avoid
spreading radioactive materials across the Iraqi countryside, and that
it had asked France to withdraw its assistance to the Iraqi nuclear
program but France had refused. Michael Doyle evaluates the Israeli
strike in terms of four criteria for the justified use of force –
lethality, likelihood, legitimacy, and legality – and seems to find
the Israeli action understandable, if not justified (Doyle, 2008:78-
84).
The Israeli strike on Osirak shows it is much easier to stand in
judgment when we don’t see ourselves as likely to be affected by the
outcome. Israel’s history and situation in the Middle East and the
history and stated intentions of the Iraqi regime should be considered
as mitigating factors when evaluating the Osirak strike. It should be
noted as well that Israel and Iraq were at least technically at war
when the Israelis destroyed the reactor because Iraq was one of the
Arab nations that had fought Israel in four wars since 1948 and had
never accepted even a truce with Israel. Ten years later, Iraq’s
unprovoked (by Israel) firing of Scud missiles at Israeli population
centers showed its continued hostility toward Israel and disregard for
the ethical and legal norms involved in fighting a war.
A second preventive strike, this time one that started a war, was
the Japanese attack on US forces at Pearl Harbor, the Philippines, and
other American territories in the western Pacific. Although the US was
not preparing to attack Japan militarily, Japanese leaders concluded
the relationship between the two nations had deteriorated to such an
extent that it must inevitably end in war. They also concluded the
military balance would become increasingly unfavorable to Japan after
1941. So Japan decided to strike while it had the best chance of
success. Interestingly, had American aircraft spotted the Japanese
strike force on its way to the attack and the US attacked that force,
it would have been a legitimate preemptive attack. The 2003 US
invasion of Iraq can also be seen as an example of a preventive war
(although it was called preemption) intended to prevent Iraq from
developing, deploying, disseminating, and using weapons of mass
destruction (WMD). It could also be viewed as a response to Iraq’s
repeated violation of the truce terms that ended the 1991 war because
no treaty had been signed. The war between Iraq and the US-led
coalition had not ended, it was only in abeyance.
A third term sometimes used is anticipatory self-defense
(sometimes anticipatory action). This term does not appear in the DOD
dictionary. The term is often used as a synonym for preemption, but
this is too narrow. Both preemption and preventive war are forms of
anticipatory self-defense, one imminent and one long-term (although
some lawyers consider putting anticipatory and self-defense in the
same sentence to be an oxymoron). Hence, I will use anticipatory
self-defense as a blanket term to include any type of attack launched
against an enemy suspected of hostile intent before it can launch its
attack, even if that attack might be far into the future.
The just war tradition has long recognized that a nation need not
wait for an enemy to actually strike the first blow before it may
defend itself.4 This is based on the conviction that one of the primary
roles of government is the protection of its citizens from threats
both internal and external. But the tradition has required the nation
to have reliable intelligence that the enemy has both intent and
capability to attack and has taken steps toward that end.
From an Augustinian perspective, and Augustine was one of the
authors of what has become the just war tradition, preemptive war is
just because it seeks to prevent an injustice from being perpetrated
on the state and populace about to be attacked. Moreover, “in the case
of a state that is preparing to attack another state without just
[cause], the would-be attacker is already guilty of an injustice and,
by Augustine’s standards, deserves punishment” (Smith, 2007: 158)
Anticipatory self-defense in this case constitutes preemption. It
becomes preventive attack or preventive war when the enemy has intent
but does not yet have capability or has the capability but has not yet
demonstrated intent (at least in terms of taking steps beyond public
oratory).5 Capability alone cannot be equated with intent. Preventive
strikes and preventive war historically have not satisfied the
criteria for a just war.6
Post-9/11 discussion has challenged the traditional understanding
of preventive attacks and preventive war. Historically, such military
actions have been held to violate the criteria of just cause,4 Customary international law has also recognized the right of preemptive
self-defense although many international lawyers believe the UN Charter has
removed this option and that nations now may only respond militarily to an
actual attack and that only in carefully defined circumstances. Because I am
making my argument in terms of the ethics of the just war tradition and not
the statutes and treaties of international law, the UN Charter is not relevant
to my argument. In any case, what is legal is not necessarily moral, and vice
versa.
proportionality, right intent, and last resort. Those who advocate
reconsidering the ethical and legal status of preventive war offer two
arguments. First, the existence of WMD in nuclear, chemical,
biological, and radiological forms and transcontinental means of
delivery constitutes an unprecedented situation where preemption might
not be possible and failure to preempt threatens national survival.
Thus, certain states must be prevented from obtaining WMD and/or means
of delivery. And if diplomacy and international sanctions fail, force
must be used. Second, they argue that “rogue” states and non-state
actors cannot be deterred, unlike traditional nation-states. Because
they are not deterrable, they must be stopped from obtaining WMD, or,
if they already have WMD, they must be prevented from being able to
use their arsenal.7 Further, by their very nature, non-state actors can
prepare and carry out attacks without prior warning.
5 Shue says justified preventive attacks are “much easier to imagine in the
abstract than to carry out in practice.” (Shue, 2007: pp. 245 f.).
6 A preventive strike is not the same as preventive war, but because
preventive strikes can lead to war, I am treating them here as one. I see no
ethical distinction. It seems that preventive force can be sanctioned by the
UN Security Council (an unlikely occurrence) and thus legal, but I do not
believe that this would make it any more ethical than if it were unsanctioned.
In a world where WMD can destroy a large city or kill or disable
a significant portion of a nation’s population without warning, both
concerns need to be addressed. I will do so after evaluating
preemption and preventive war in terms of the just war tradition’s jus
ad bellum criteria.
Jus ad Bellum Criteria
The criteria the just war tradition uses to evaluate whether
going to war would be just (jus ad bellum) include just cause, proper
authority, right intention, last resort, reasonable chance of success,
proportionality, and public declaration. Using these criteria
generally leads to different conclusions regarding preemption and
preventive war, even when revisionist concerns are taken into account.
One caveat is necessary, however: the just war tradition historically
has dealt with the actions of nations,8 whereas revisionists warn that
7 The deterrability of rogue states has been the subject of heated debate
because rogue states have been deterred from using WMD on occasions where such
use was possible. Iraq in 1991 is the most obvious case. Deterring
transnational terrorist groups is a different and more difficult matter, but I
will argue below that the just war tradition’s jus ad bellum criteria do not
apply to actions against these groups.
the more likely threat today comes from non-state actors such as
terrorist groups.
The meaning of just cause has changed over time, first narrowing but
more recently expanding. When the just war tradition originated, just
cause included self-defense against attack, assisting another against
aggression, regaining something that had been wrongfully taken, and
punishing an aggressor for wrongs it had committed against others. The
criterion then came to be understood in international law terms as
permitting only self-defense against aggression. More recently, many
have argued that it still permits defending others against aggression
(as in the 1991 Persian Gulf war) and even allows humanitarian
intervention within the borders of a sovereign state under certain
circumstances. Particularly in the second instance, a gap is
developing between what is considered legitimate and what is legal.
Preemption, when properly defined, satisfies the criterion of
just cause because it requires clear evidence that an enemy is
actively preparing to initiate an attack. Because waiting for the
enemy to actually strike the first blow before responding can put a
nation at a serious strategic disadvantage, even foreordaining the
8 My use of the term nation is anachronistic here, since the just war
tradition is more than 1500 years old and the nation-state is a far more
recent development, usually dated from the 1648 Treaty of Westphalia.
outcome, evidence of imminent attack that can no longer be deterred is
sufficient to justify a preemptive attack as an act of self-defense. A
preventive strike or war cannot normally satisfy the criterion of just
cause because the anticipated enemy action is too far in the future to
be certain, intent and capability do not necessarily both exist,
intelligence about capability may be inadequate and about future
intention always provisional, deterrence remains a possibility, and
the situation in the enemy state may change for the better.
There has been much discussion about what constitutes a proper
authority, particularly in the United States due to the constitutional
division of labor between the executive and the legislature. I do not
believe the question of proper authority hangs as much on that
constitutional question as on whether the decision maker is a
government leader or a private citizen. This is the distinction
between bellum and duellum that James Turner Johnson has emphasized
(although he is not responsible for how I use the distinction). Bellum
is war between two nations whereas in duellum at least one party lacks
such international standing. It could be an international crime
organization or it could be an organization like al Qaeda; in any
case, it is a private group, not a government. Such groups lack the
standing to go to war justly. As Keith Pavlischek writes, “War could
not merely be an extreme tool of private parties but had to be a legal
instrument, a part of the coercive power of law itself” (Pavlischek,
2002: 26).
Right intention is a difficult criterion to evaluate. It goes beyond
just cause in seeking to understand the motivation behind going to
war. Because such discernment is difficult, some have suggested right
intention be absorbed into just cause. Consequentialists might argue
that intention is not as important as what is achieved. Neither
suggestion is a good idea. Right intention dates at least as far back
as Augustine and it is particularly relevant to the current discussion
of preemption and prevention. This is because we not infrequently do
the right thing for the wrong reason (or, in this case, act
justifiably for reasons that are unjustifiable). Like people,
governments often act on the basis of multiple intentions. So primary
among these intentions must be the desire to pursue a just cause and
any intention to pursue an unjust cause must be absent.9
In the case of preemption, a state might take preemptive action
against an enemy that is behaving belligerently because a devastating
preemptive strike might remove a competitor or it might provide an
opportunity to gain territory or access to resources (as in Germany’s
“preemptive” attack on Poland in 1939) or it might protect the
9 Primarily but not exclusively – the latter is an impossibly high standard
for anyone.
preemptor against the devastation of its own population. Self-defense
is a proper intention for going to war, but removing a competitor (or
potential competitor) and territorial gain are not.
True preemptive strikes are rare, so finding a real example of
preemption with a wrong intention is difficult. This is not the case
with the preventive use of force. In fact, historically, most
preventive wars have occurred because a nation wanted to prevent
another nation from becoming strong enough to challenge its standing
on the international stage.10 Current arguments for the preventive use
of force focus on “rogue” states and non-state actors that it is
believed cannot be deterred and that would provide insufficient
warning of any attack to allow it to be preempted. This claim,
according to its advocates, would constitute self-defense and would
satisfy the right intention criterion. I will have more to say about
this special situation below.
Last resort has been something of a slippery criterion to define.
Taken literally, there is always something else short of war that can
be done, even after the first blow is struck. In that sense, it becomes
an argument for the oxymoron known as just war pacifism. This
criterion is better understood to mean the last reasonable resort.
10 This is probably equally true for wars in general, not only preventive
wars.
Reasonable is the key word because there is no obligation to attempt
actions that obviously will not work. When a nation detects a known
enemy far advanced in preparing to attack it, options for responding
short of war are likely to be very limited. To put it another way, the
last reasonable resort short of military force may already have come
and gone. A preemptive strike might be the only option. With the
preventive use of force, it is a quite different matter. For a
potential threat that cannot become actual until some future date,
there are various non-military options available: deterrence,
diplomacy, sanctions, international pressure, covert action, and the
like. There may even be a domestic political change in the enemy state
that moderates or removes the potential threat. Most nations are
deterrable (North Korea may be an exception) because they have
something to lose in a war. (I will argue later that non-state actors
normally do not fall under preemptive or preventive concerns, so I am
ignoring them here.) The key regarding last reasonable resort and the
preventive use of force is that there is usually something else that
can be done to avert war. The onus falls on the preventer to justify
its action as self-defense rather than aggression.
Because war is so destructive and costly in lives and resources,
the just war tradition expects that there be a reasonable chance of success
when one goes to war. There may be rare exceptions where a nation goes
to war against heavy odds because the consequence would be
unacceptably terrible (e.g., Israel in 1948). This criterion applies
equally to preemption and preventive war. Before a nation tries to
beat an enemy to the punch (either imminent or long-term), it must
consider carefully whether it stands a reasonable chance of winning
the conflict that will ensue. This means it should consider possible
unintended consequences of its action and the jus post bellum obligations
it will incur. It also means that “even a successful preventative
attack that eliminates a short-term threat would not necessarily
prevent that threat from reemerging over the longer term. Indeed, it
might even create a more urgent motivation for the threat to
materialize” (Record, 2004: 22).
Too often ignored when contemplating the use of preventative
force is the likelihood of unintended consequences.11 For example,
Israel’s 1981 attack on the Iraqi reactor did delay Iraq’s nuclear
weapons program, but it also led Iraq to disperse and conceal its
remaining facilities so they would be much more difficult to detect
and attack. Other potential proliferators (North Korea and Iran)
followed Iraq’s example in dispersing and hardening nuclear-related
facilities to protect them from discovery and attack. At the end of
11 Unintended consequences can also result from preemption, but the concern
for national survival will normally trump this as an issue.
the day, dealing with potential proliferators has become more
difficult, not less, because of Israel’s preventive strike. Further,
the US invasion of Iraq to prevent development and deployment of WMD
appears to have convinced both Iran and North Korea to accelerate
their nuclear weapon and missile programs in an effort to deter the US
from attacking them as it did Iraq.
The just war tradition requires that using military force must be
proportional to the end sought. If that end can be achieved some other,
less costly way, military force should not be used. Both the use of
military force at all and the amount of military force used should be
proportional to the end sought. When it is a matter of national
survival, military force appears to be a proportional option. So the
decision about proportionality is easier and more accurate in a
situation that prompts a preemptive response. For a preventive strike
or war, calculations about proportionality are virtually impossible.
Because the decision to use preventive military force is based on a
nation’s best guess (often skewed by an element of fear or avarice or
both), the proportionality calculation can be no more than guesswork.
It will be based on what might happen, not what is in the process of
happening. Preventive use of military force does not meet the just war
criterion of proportionality simply because it cannot be accurately
correlated with the risk involved (risk being what determines one’s
desired end) because no one, probably not even the enemy, knows what
the risk really is. Neither can the costs be adequately weighed
against benefits.
The requirement for public declaration of war is intended to prevent
the military equivalent of a sucker punch. In the United States, this
has normally been provided either through a formal declaration of war
such as happened on 8 December 1941 when President Roosevelt’s speech
led to the Senate’s response of declaring war, or through a
congressional resolution authorizing the President to use force
against a particular enemy such as occurred in the Korean, Vietnam,
and both Iraq wars. Any public declaration by a person with proper
national authority would seem to meet this criterion. Even al Qaeda,
an unlawful terrorist organization, publicly declared a state of war
against the United States and other nations during the mid-1990s.12
A preemptive strike by its very nature does not seem conducive to
a public declaration prior to the beginning of hostilities. It is (or
is supposed to be) a short notice attempt to beat to the punch another
state or group of states which appear to be preparing to attack but
have made no public declaration themselves. The historical argument
12 Although al Qaeda and Osama bin Laden do not qualify as a legitimate
authority according to the just war tradition (or international law), I will
consider later the implications for al Qaeda of making such a declaration.
has been that the threatening actions of the enemy make it the
aggressor so that a state of war can be said to exist prior to the
preemptive strike (nonetheless, Israel expressed its concern publicly
and repeatedly during the weeks prior to its 1967 preemptive attack).
A preventive strike such as the Israeli air attack on the Osirak
nuclear facility is equally unlikely to be preceded by a public
declaration for two reasons. First, the necessary element of surprise
would be forfeited by such a declaration. Second, the preventive
strike is not intended as the first round in a war, but as an action
complete in itself (although the enemy response could be to go to
war). But a preventive war without a declaration would also violate
the last resort criterion since the declaration prior to initiating
hostilities might induce an enemy to settle differences. For example,
the 2003 Iraq war was preceded by repeated statements by the US
President and British Prime Minister, a congressional declaration in
support of military action, and an initiative before the UN Security
Council, all in an effort to get Saddam Hussein to comply peacefully
with their demands.
Rogue States and Non-State Actors
Current arguments in favor of preventive military action,
especially those that attempt to conflate preventive and preemptive
actions, invariably emphasize the new threat created by rogue states,
non-state actors, and WMD. The arguments point out that these factors
didn’t exist when strict limits were put on preemption and preventive
military action was prohibited outright.13 The massive threat created
by WMD and minimal (at best) warning to potential targets requires
that the rules be changed to reflect the changed situation, or so the
argument goes.
I begin with non-state actors such as al Qaeda. These
organizations do not properly fall within the discussion about
preemption and prevention despite the assumptions of many who have
written on the subject. There are two reasons for this. First, they
are private organizations, not nation-states, and thus neither answer
to a political citizenry nor possess the moral or legal standing of a
nation-state. Second, they often announce their existence by attacking
13 Guiora says, “The existing law does not address when a state may take pre-
emptive or anticipatory action against a non-state actor, and thus does not
provide an actionable guideline for modern-day armed conflict.” (Guiora, 2008:
13, italics original). I believe Guiora’s conclusion is incorrect because he
treats this as an ad bellum concern, whereas it is normally properly an in bello
matter.
a nation or its citizens and then taking public credit for their act.
Thus, military force used against such terrorist groups is a
preemptive or preventive action within the context of an ongoing war
(in bello) and not an act that initiates a war (ad bellum). For example, al
Qaeda publicly declared war on Israel, the United States, other
western nations, and many Arab governments by means of a fatwa in the
mid-1990s (although bin Laden lacks the authority to issue a fatwa).
This declaration was both preceded and followed by deadly attacks,
primarily on civilians, in many of these countries. This means a state
of war already existed between al Qaeda and the nations it had
attacked and their military responses occurred within that context. It
also means that military force was the appropriate response to the
terrorist attacks.
Although al Qaeda is not a legitimate political entity and bin
Laden is not a legitimate authority, and al Qaeda refuses to honor
international law and just war and Islamic tradition regarding in bello
standards, it would be foolish not to recognize its public declaration
of war for what it is. Having announced that a state of war exists, al
Qaeda has declared itself a belligerent, albeit an unlawful one. Such
a public declaration, I propose, does not confer on the non-state
actor any rights of belligerency, but it does give those rights to the
nations upon whom war has been declared. Thus, no specific
declarations of intent are required for states identified for attack
or actually attacked to respond consistent with the jus in bello criteria
of the laws of war, including preemptive and preventive attacks. Thus,
actions against al Qaeda (and nations that aid and abet it14) are acts
of wartime self-defense. They are not preemptive or preventive wars.
To consider such actions in terms of ad bellum preemption and preventive
military action is a category mistake. They are actions taken in the
midst of war, not war-initiating actions. This means much of the
debate about the proper way to deal with transnational non-state
actors, particularly terrorist groups, during the past two decades has
been misguided.
14 International law is very restrictive about the use of force against states
that harbor terrorists but do not themselves attack the terrorists’ target.
Such protected status is immoral; a state that knowingly abets terrorists is
no less responsible for their actions than the terrorists it harbors and a
state that is unable to control terrorists who have based themselves in its
territory has no moral right to object when the target of those terrorists
crosses its border to attack those terrorists. The sovereignty of nation-
states confers both rights and responsibilities. Those states that are unable
or unwilling to fulfill their responsibilities as states compromise their
claim to right to be treated as sovereign states. This is not the place to
argue this as an ethical claim, so I offer it as an axiom.
A similar situation exists with regard to nations that have
provided aid and comfort to these terrorist organizations. For
example, the Taliban regime in Afghanistan offered a home to al Qaeda
after it was expelled from the Sudan. It did so after al Qaeda had
committed terrorist acts in the United States and other countries (and
had declared itself to be at war with them) and it should have been
aware of al Qaeda’s responsibility for these attacks. Thus, the
American invasion of Afghanistan in late 2001 was not an act of
preemptive or preventive war (as it frequently has been described and
defended), but a response to ongoing al Qaeda aggression abetted by
the Afghan Taliban regime. Thus, it was an in bello situation, not an ad
bellum one.
When non-state actors are considered (at least theoretically) in
an ad bellum situation, the criterion of last resort comes into play.
What actions short of military force can be used to prevent non-state
actors (particularly ideological terrorist organizations) from acting?
In other words, how can they be deterred? The consensus seems to be
that they cannot. They lack the territory and tangible assets that can
be held hostage to retribution. In other words, they believe they have
nothing to lose (and some religion-based terrorist groups believe they
have much to gain). Moreover, they are not legitimate entities under
international law and therefore are undeserving of the protection of
that law.15 This would seem to include preemptive and preventive
military action against belligerent groups clearly seeking to obtain
advanced weapons systems in the unlikely circumstance that they have
not already put themselves in a state of war against their nation-
state enemies. They have no legitimate reason to possess such weapons.
The situation is different with so-called rogue states. Here
there is territory, a civilian population, resources, national wealth,
and political power that are liable to attack. And because “rogue”
states tend to be smaller and weaker than the leading states in the
international order, such attacks are likely to be overwhelming and
devastating. Thus, for a “rogue” state to attack another state,
especially using WMD, would be tantamount to committing national
suicide. This doesn’t seem to be a likely situation and thus not a
reason for preventive military action. As many students of
international security studies have noted, the practice of the major15 Even though these organizations lack standing under international law,
members of these organizations, however reprehensible they and their actions
may be, remain human beings and must be treated as such by their targets for
the sake of the moral health of the target states even if for no other reason.
The legal status of captured terrorists remains the subject of debate, but
neither prisoner of war nor criminal is entirely adequate. This remains a
subject for further consideration by military ethicists and international
lawyers.
powers, at least until recently, has been to threaten military force
not to prevent acquisition of WMD (although that was considered
several times during the Cold War), but to prevent the use of WMD by
states that already possessed it (as apparently happened during the
1991 Persian Gulf war). The exception to this appears to be North
Korea, which, for a variety of special circumstances, appears nearly
immune to deterrence.16
North Korea would be very difficult to deter because it has
little in the way of assets that can be held hostage. The leadership
has shown no concern for the people of the country. North Korea has
virtually no industry other than munitions making, limited natural
resources, and is unable even to feed itself without handouts from
other nations. Additionally, the capital of South Korea, Seoul, is
within range of the North’s artillery and Japan is within range of
North Korean missiles. Russia and China, North Korea’s two land
neighbors, fear the collapse of the current regime and the resultant
16 North Korea is technically at war with the United States and the United
Nations. The war which it began in 1950 ended in 1953 with a truce that was
never ratified by a peace treaty. One of North Korea’s great desires is to
sign such a treaty with the United States, its major enemy in the war,
possibly because its misbehavior is more readily subject to a military
response under the truce than it would be under a treaty.
flood of refugees across their borders. North Korea would be the best
argument for preventive military action due to its nuclear weapons,
missile programs, proliferation policy, and its threatening behavior
except for three things: incomplete intelligence about the location of
North Korean weapons storage and production sites, the inability to
certainly destroy all of them, and the certainty of massive
destruction in South Korea. It is unlikely that any foreign government
has the necessary knowledge or capability to take out all or even most
of North Korea’s WMD program. A military strike that failed to destroy
all of North Korea’s WMD would be catastrophic for South Korea, and
possibly for Japan as well.17 The uncomfortable reality is that North
Korea is better situated to deter its enemies from any preventive
action than to be coerced into ceasing its proliferation efforts.
Iran is a different story. Despite its radical leadership and
stumbling economy, Iran has assets its leaders are unlikely to put at17 Because North Korea is technically still at war with the United Nations
(the 1950-53 conflict ended in a truce and not a peace treaty) and because
hostilities have continued at varying levels of intensity ever since, actions
against North Korea could be consider in bello rather than ad bellum. Although
this may not satisfy the lawyers, I think it can be argued ethically that the
state of war resulting from North Korean aggression never ended and that North
Korea never intended to abide by the terms of the truce it signed in 1953 or
any of the agreements it has signed since.
risk. And Iran has an enemy that is unlikely to hesitate to preempt or
respond devastatingly to any attack Iran launches against it. That
enemy, Israel, is generally believed to have both nuclear weapons and
delivery systems that can reach Iran. Apart from any threats by
Western nations or the United Nations, Israel should constitute a
sufficient deterrent to Iran to make preemptive action unnecessary.
Nonetheless, neither North Korea nor Iran is likely to go to
war, at least deliberately, with other nations. This means preemption
is not an option. But both nations will remain disruptive, dangerous,
and belligerent. That is why preventive war remains part of the
discussion.18 But preventive war is morally, legally, and prudentially
unacceptable. While the outcome would almost certainly be the defeat
of these troublesome regimes, the cost to both winners and losers
would be enormous. Moreover, preventive war always has the potential
to create a problem where none existed before due to intelligence
failure, misperception of one’s enemy, or narrow pursuit of national
interest.
An additional concern about the preventive use of force in these
or other situations is that it provides a precedent for other states
18 I don’t say preventive strikes because in these two cases military action
is almost certain to lead to war.
that might desire to act preventively or aggressively against real,
potential, or imagined enemies.
The Difference WMD Make
Or do they? Weapons of mass destruction, whether chemical,
biological, nuclear, or radiological, terrify people. And with good
reason. The greatest danger of WMD is that they can be used without
warning and anonymously. If this should happen, not only is preemption
impossible, so is retaliation (thus removing the effectiveness of
deterrence). This has led a growing number of policymakers, academics,
and opinion makers to advocate using preventive force to defang
dangerous and unstable nations before they can develop, deploy, and
proliferate WMD. This is what Israel did in 1981 against Iraq and in
2007 against Syria when it destroyed nuclear reactors that were under
construction.
The preventive use of force remains controversial, despite the
addition of WMD to the equation, because the reservations that have
applied to preventive force historically continue to apply, only the
consequences of action or inaction have become much greater. Just as
failure to attack preventively could lead to massive destruction, so,
too, could a mistaken or unnecessary preventive attack cause a highly
destructive and unnecessary war.
Far too often, the just war tradition has been used as a
checklist so that if all the ad bellum criteria were met, a nation could
say its actions were justified and then proceed to attack. But while
it is true that the criteria must be met in order for military action
to be justified, the tradition is intended as a tool of statecraft.
This means justness is a necessary but is not a sufficient condition
for using military force. First, there are times when going to war may
but just but imprudent. War eats up resources that might be better
used in other ways (these are called opportunity costs) and wars often
have unforeseen consequences beyond those planned for when the
decision to go to war was made. These often are related to the still
under-developed category of jus post bellum19 Jus post bellum responsibilities
will be a greater concern in the case of preventive war than in the
case of preemption, but they affect both forms of anticipatory self-
defense as Israel’s ongoing West Bank and Gaza problems and the
unexpected American commitment in Iraq seven years after the invasion
both attest. This is a matter of weighing costs against benefits (both
of which are to some extent potential). Second, there are times when
if it is just to go to war against one nation, it would be equally or
more just (if there can be such a thing) to go to war against a dozen
other nations. So why fight this country and not any of the others?20
Third, going to war, even a just war, is also subject to the law of
unintended consequences. Although they cannot be certain beforehand,
military planners and political leaders should consider the effect
their actions might have on nations and groups not directly involved
and decide whether those side effects are worth it. For example, both
the Israeli attack on Iraq in 1981 and the US invasion of Iraq in 2003
were intended to deal with Iraq’s nuclear weapons program. To the
extent they did, they also caused other proliferators to harden and
disperse their facilities and speed up their programs. So, in dealing
with Iraq’s program, these two nations made future action against
proliferators more costly and less likely to succeed.
A counter to my claim that the preventive use of force outside of
an existing war is wrong is the argument from success. I alluded to
this earlier when discussing the Israeli strike against the Osirak
reactor. It was said that destruction of the reactor made a great
difference in the 1991 Persian Gulf war because it meant Iraq didn’t
have nuclear weapons available for that war. But this utilitarian
argument shares the weakness of all utilitarian arguments: the
impossibility of knowing all of the possible outcomes before acting,
and therefore the impossibility of measuring the ends achieved against
the means employed. As we have seen, some of the long-term
consequences of the strike were harmful and unanticipated. And it is
hard to see how a possible result from ten years after the fact can
justify the initial action. Similar concerns could be raised about the
consequences of the 2003 Iraq war. Aquinas’ warning that we must not
do evil in order to achieve good and Kant’s categorical imperative
remain compelling ethical arguments against preventive war.
Conclusion
The threat caused by “rogue” states and transnational terrorist
groups has led some politicians, theorists, and military leaders to
propose using preemptive and preventive military force to contain or
remove the threat. Although the discussion has been confused by
careless use of the terms preemption and prevention, these terms are
distinguished by degree of immediacy and certainty and differentiated
in terms of ethics and legality. The just war tradition, which has
been developing over the past 1500 years, offers criteria to evaluate
the justness of any preemptive or preventive use of military force.
Preempting an enemy preparing to attack has traditionally been
considered a justified use of force in self-defense. Launching a
preventive war against an enemy or potential enemy to avert a possible
future attack is unjustified and illegal because it constitutes
aggression.
Although WMD are often considered to have changed the traditional
understanding of preventive war, this is not the case. WMD do increase
the risk involved, but do not change the conclusion as regards nation-
states. The just war tradition’s ad bellum criteria normally do not
apply to transnational terrorist groups because they are already at
19 See McCready, 2008, passim.
20 Thus the question in 2002 and early 2003: Why Iraq and not Iran or North
Korea?
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against such groups thus occur in the context of an ongoing war and
are limited only by the in bello criteria of proportionality and
discrimination.
Because one of the primary responsibilities of nation-states is
the defense of their populations, they may act militarily against
nation-states and organizations that constitute a clear and imminent
threat or who already are at war with them. The just war tradition
offers guidance to political leaders to determine when such actions
are justified. International law is dated in its application, disputed
in its meaning and application, and unduly restricts nation-states’
right to defend themselves.
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