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Abstract
This essay makes three claims about preventive war, which is demarcated from preemptive war and is part of a broader class of ‘anticipatory’ wars. Anticipatory wars, but especially preventive war, are ‘hard cases’ for traditional Just War theory; other puzzles for this tradition include nuclear deterrence, humanitarian intervention, and provability a priori of the success of Tit-for-Tat. First, and despite strong assertions to the contrary, it is far from clear that preventive war is absolutely prohibited in traditional Just War Theory, and it is also dubious that it is in all cases ‘clearly illegal’. Second, the morality of both preemptive and preventive wars is shown to turn on epistemological considerations: on what degree and kind of justification the primary metaphysical facts of threat can be reasonably believed. Third, an argument is made that whatever epistemic threshold is held to be necessary, some preventive wars will exceed it, and that this is more likely with advancing technologies of information acquisition. Finally, the common argument that allowing all nations to follow policies of preventive war would result in more wars than barring such policies is shown to be mistaken by simulations in game theory. Suggestions are made about the derivation of traditional Just War criteria from more basic moral principles, and about their subtle failures as jointly necessary conditions for the morality of war.
Notes
1. As a locus classicus for Just War Theory I use (Grotius 1625) as described in (Christopher 1998). These conditions are Just Cause, Proportionality, Reasonable Chance of Success, Publicly Declared, Legitimate Authority, and Last Resort. ‘Right Intention’ and ‘Fought Justly’ are dropped.
2. Especially before the US National Security Strategy of September 2002 and the Iraqi War of spring 2003. An exhaustive search in Philosopher's Index in early 2003 for substantive references to ‘preemptive’ or ‘preventive’ war, as well as other variants, brought just two articles—plus Walzer's Just and Unjust Wars, which I knew of but was not referenced. Philosopher's Index is an index of all major and many minor philosophical journals in English, as well as major journals in foreign languages, 1940–2003. The American Philosophical Association in a resolution passed overwhelmingly in spring of 2003 stated: ‘Members of the Eastern Division of the American Philosophical Association express our serious doubts about the morality, legality and prudence of a war against Iraq led by the United States. Both just war theory and international law say that states may resort to war only in self-defense’ (Eastern Division: 1,202 in favor, 263 opposed; Pacific Division 283 in favor, 78 opposed). This was a peculiarly definitive position for professional philosophers to take, given the lack of literature (and apparently, lack of extensive and recent thought about the issue), and also given that figures as well known as Grotius and Walzer have permitted preemptive war. In Nardin (1996), for example, there is no sustained discussion of preemptive war, and although author David Mapel approves permitting preemptive and even preventive war (59–60), his defense is from a Realistic perspective that rejects a role for moral thinking in the philosophy of war (60). Jeff McMahan permits both in rare cases (85) but gives what I later call an epistemological presumption against it, ‘a state's ability to understand the intentions and predict the future behavior of its adversaries is notoriously weak’. This treats epistemological criteria in a piecemeal way and it is difficult to see why states’ knowledge of (i) adversaries’ (ii) intentions is a special case, or why this fallibalist constraint does not also apply to other factors in the Just War criteria themselves.
3. Although he perhaps could be accused of running together a Hobbesian tradition, which generally permitted all manner of aggressive war as anticipatory defense, together with Just War tradition, this work extensively documented philosophers of war from ancient (Cicero) through Late Modern times (Kant) who permitted preventive wars. See especially (Tuck 1999: 18–31). I have seen a draft of a paper by Gregory Reichberg, ‘Preventive War in Classical Just War Theory’, that examines the primary sources with more care with regard to preventive wars than have previous authors.
4. ‘Well ordered peoples… [initiate war] only when they sincerely and reasonably believe that their safety and security are seriously endangered by the expansionist policies of outlaw states’ (90–91). ‘Well-ordered peoples do not go to war against each other, but only against non-well-ordered states whose expansionist aims threaten the security and free institutions of well-ordered regimes….’ (94). While these passages do not precisely offer sufficient conditions for the morality of preemptive wars, they put all their emphasis on the reasonably known ‘policies’ and ‘aims’, rather than actual deeds.
5. ‘I fear that giving a green light to preventive war would make wars frequent and too routine’ (in Luban 2004).
6. Or at the very least, the Future Threat aspect of permitted war can be separated from Punishment for past deeds and from morally and emotionally neutral Tit-for-Tat (or other forms of rational deterrence). There may be other justifications for military action, such as humanitarian intervention, in which a nation by action or inaction poses a threat to its own citizens. The counterattacking nation does not constitute a legitimate and acknowledged legal authority for the administration of justice, and its military and defense institutions do not have that ‘purpose’, a point made by Vattel (Tuck 1999: 194), Kant, and others.
7. This has interestingly been disputed in (McMahan 2004) developed from ideas in (McMahan 1994) but the usually granted right of national self-defense is absolute.
8. A threat to the defenders of those citizens (such as to military forces), rather than directly to the citizens, is a variant of this.
9. This might be considered a species of Last Resort. I will later argue that Last Resort in any of its usual forms should be abandoned.
10. There is also frequently a blatant fallacy ad ignoratium, namely that since there is no or little literature justifiying preemptive war, therefore preemptive war is morally unjustified. (Observe that the premise that there is little literature defending preemptive war is mistaken.) Cf. the APA condemnation of the Iraq War in December 2002. There is a shred of rationality in this maneuver, however, since the onus is on justifying war: one cannot simply retort to a critic of a war, ‘Why not go to war?’ Observe that even if a set of jointly sufficient conditions for moral are met, this is not sufficient to make going to war wise or morally obligatory.
11. A right to existence, and to a stable political order or to what Rawls calls a ‘well-ordered’ people, and more precisely a ‘decent’ people’ (Rawls 1999: 4f), is after all necessary for exercising almost any other rights.
12. I require that the central authority have justifying evidence in hand, not that it be justifiable, or later turns out to be justifiable. This is partly because I intend these conditions both as describing moral truths and as moral guidance for agents, a distinction not widely enough noted.
13. It is not necessary to stipulate how you know the neighbor will attack, or that he has attacked before.
14. Or you know that your neighbor, because of psychological or religious factors, is undeterrable by any future punishment, no matter how severe or likely.
15. Legally excused or justified by an assertion of necessity, although that is not the issue here.
16. While state of mind (usually, intent), mens rea, is required for many crimes, it is contrary to metalegal traditions and intuitions to make mens rea sufficient for the crime.
17. The Catechism of the [Roman] Catholic Church requires as one necessary condition for war that ‘the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain (#2309) PART THREE: LIFE IN CHRIST /SECTION TWO: THE TEN COMMANDMENTS /CHAPTER TWO: ‘YOU SHALL LOVE YOUR NEIGHBOR AS YOURSELF’ /ARTICLE 5: THE FIFTH COMMANDMENT /III. Safeguarding Peace/Avoiding War’ and does not literally require that the damage be actual or past.
18. Observed by US Secretary of Defense Donald Rumsfeld as quoted in the Washington Post January 30, 2003.
19. Even if the single most recent example of overestimating such prowess, in the 2003 Iraq war, is disaterously obvious.
20. Ambrose (1990: 369). The first Soviet thermonuclear (‘hydrogen’) bomb was tested 12 August 1953. A curiously related opinion was an earlier suggestion by Bertrand Russell to prevent by military means the Soviet Union from developing atomic weapons. This is discussed in Perkins (2002); see also Blitz (2002). These are two of the very few articles dealing marginally with the morality of preventive war before 2003.
21. United Nations Security Council resolution 487 (1981) of 19 June 1981; General Assembly Resolution 39/14 (16 November 1984).
22. The Cuban Missile Crisis, the War of Spanish Succession, and a number of examples and European Union representatives that support the legitimacy of preventive war are discussed in Boot (2004).
23. Holbrooke (2004): ‘In 1962, unlike 2003, American intelligence and analysis was excellent. High-altitude photographs found and identified the missiles before they were deployed’. Evidence or belligerency was more lacking, and while intelligence about the missiles was good to excellent, intelligence about the status of their possibly nuclear warheads was dangerously in error.
24. Holbrooke (2004) dismisses this, ‘By the time they were installed in early 1962 they were already obsolete; President Dwight D. Eisenhower said they should have been dumped at sea rather than sent to Turkey, and American nuclear submarines made them superfluous’. What Eisenhower thought is, however, not relevant, but rather what was important was the Soviet's perception of their threat.
25. Here I allude to what I believe is an extension of the conditions justifying war (i.e. sufficient conditions that are alternatives to the traditional ones). Namely, principles or conditions for going to war which, in the long run and with near certainty diminish the overall quantity of destruction through war over history when applied by all parties, are themselves morally justified sets of sufficient conditions for a just war. The conclusions of employing my metaprinciple have similarities with views in the use of force between nations that are sometimes called (geopolitical) ‘realism’. However, my justification for these endpoints is ultimately philosophical and moral, rather than claiming that moral reasoning does not apply.
26. Walzer's position is less helpful than one might think. He did not to my knowledge point out clearly that, presuming the possession of WMD's, Iraq in 2002–2003 fulfilled the criteria for anticipatory war in Just and Unjust Wars. His position in the New Republic, various discussions that were transcribed, and later in Arguing about War seems to have been that a Last Resort condition was not met. Although there is a great deal of policy and popular literature on the US National Strategy, and later on the wisdom of attacking Iraq, most of it both pro- and con- has a partisan, Internationalist, canonical Just War (i.e. the position of the Roman Catholic Church), is narrowly legal, or has Realistic flavor of eschewing morality altogether.
27. See for example Ignatieff (2004: 162–167). While this is a subtle and careful discussion, Ignatieff does not seem aware of the possibility that I am advocating, namely, that international approval is not a fundamental, moral condition for morally justified war. Rather, its logical position is in support of the epistemic threshold, and it is this condition that is fundamental; even here it is also more limited than many, including Ignatieff, propose.
28. See New York Times, 11 July 2004 discussing Kent's lecture notes and articles by his aides. Interestingly, recent history suggests more that CIA and other US intelligence services have tended to underestimate military potential of rogue nations (Cuban missiles, Libya, North Korea) than to overestimate them. Iraq seems to be a fluke. And while a lack of human intelligence was a notable failure, depending instead on the analysis of aerial and satellite surveillance, various figures high in Hussein's regime, including division commanders, believed that Iraq indeed had chemical WMDs; we could have had many such high-placed human intelligence sources and still been mistaken.
29. Namely, in its representation of veto-bearing members that is wildly undemocratic, but also in the ulterior economic and geopolitical motives that seem to more often than not play an unhelpful role. The role of the Security Council in this epistemological dimension would have been greater if had not avoided its possible role in crises such as Kosovo and Rwanda, and more generally shunned the use of force in enforcing mandates such as disarmament.
30. This does not speak to prudential and legal issues, and does not address the moral issue in complying with international agreements, such as the UN Charter. Article 51 clearly avoids stating that self-defense is permitted, without Security Council sanction, only in response to armed attack. See Anthony C. Arend, ‘The War that Changed Everything’, New Statesman, 15 March 2004, for a discussion of the legal issues. I believe preventive and maybe even preemptive (imminent) war is indeed contrary to the spirit or ‘implicit’ text of the UN Charter and thus probably intended to discourage it. If one looks to legislative history for evidence of intent, it is clear that for major powers ca. 1945, this ambiguity was intentional.
31. The quantity and nature of evidence for any such actionable threshold differs with the domain of the subject and the associated risks of being mistaken in acting or of inaction. Epistemic appraisal almost certainly has more dimensions and gradations than simply being knowledge or ‘mere belief’ once it is regarded with respect to its impact on actions. The recent history of epistemology and its intuitions about what constitutes one sort of ‘true knowledge’ smacks of a lack of sophistication with regard to the uses and functional nature of beliefs in all of cognition.
32. Observe that with ‘manifest’, Walzer is tacitly introducing an unexplained epistemic condition.
33. We could start with the traditional moral principles, carefully researched.
34. Peter Singer asserts, ‘Under current international law, preemptive strikes are not permitted unless they are in defense against an imminent attack’ (Singer 2004: 180). Contradicting this statement, he later notes (Singer 2004: 181) correctly that the UN Charter gives states the right to defend themselves “if an armed attack occurs”—thereby suggesting that the provisions of the charter do “impair” any possible “right of self-defense” when no armed attack has [!] occurred’. Observe the very weak ‘suggesting’.
35. I refer here to the first part (a) of the indictment, Article 6, cited in (Marrus 1997: 52) , ‘Crimes against Peace’, i.e. jus ad bellum crimes of wars of aggression. International tribunals since 1946 have typically not addressed jus ad bellum crimes. This part of the Nuremberg indictment hinged delicately on Just War traditions and the Kellogg-Briand Treaty (1928), abandoned by almost all nations by the time Germany started its aggression. Violations of jus in bello and crimes against humanity were indictments (b) and (c). I assume that the Kellogg-Briand Treaty, which far more clearly than the UN Charter would condemn preventive wars, is no longer considered applicable ca. 2003.
36. As can be seen in (Russell 1958), there was the widespread assumption of a right of self-defense that seemed to many representatives not even to require language like Article 51. Efforts in Mexico City, Dumbarton Oaks, and then finally in San Francisco to define ‘aggression’, as well as stating what actions would automatically trigger Security Council condemnation and action, were soundly rejected. It was believed the permissible and impermissible such actions could not be clearly defined in advance. Even an effort proposed by China to list examples of aggressive acts that violated the Charter was rejected. The United States pointed out (at Dumbarton Oaks), to no opposition, that the concept of armed aggression (later ‘armed attack’) covered ‘preparations therefore, as well as threats to and breaches of the peace’. Far more discussion at the conferences, and later in the US Senate, was devoted to preserving the peacekeeping and defense role of ‘regional arrangements’ (Articles 52–4), which were broadly understood to include arrangements with nations outside of the region.
37. Even if the Charter had more clearly legally banned preventive war, there would still be enormous doubt about whether it would constitute law under the present US Constitution—and thus whether US soldiers would be obligated to disobey an illegal order to enage in preventive war. The Constitution gives the President, with Senate approval, the right to enter treaties; the Constitution and other resolutions generally make following these treaties legally obligatory. However, a UN ban on preventive war would conflict with the widely understood, near absolute Constitutional right for the President to initiate military action as commander-in-chief. Even the War Powers Act does not restrict this in the short run. Both by common sense and by legal precedents, no treaty could override the Constitution.
38. They were written in the computer language Prolog over 2003–2005. Each strategy was tested for runs of 500–1000 iterations (compared with Axelrod's original 400) and then these runs were repeated up to ten times and averaged so as to eliminate artifacts of the random-number generator. Strategies were compared not just for relative advantage over other strategies, but also for total net destruction to both parties, a rough measure of the Just War criterion of Proportionality.
39. This does not take into account the phenomenon in which a nation about to launch an unjustified first-strike, but was attacked, would often know that this attack was preemptive or preventive in nature, and so would know it need not continue to ‘retaliate’ with the usual probability.
40. This argument does not consider or need any exceptionalism: the theory that preventive war should only be a policy for all those in certain historical, moral, or military situations.
41. There is some empirical evidence that Rawls is incorrect. See Bennett and Stam (2004: 117–118 and 128–131)
42. This is an invitation to a bellicose enemy to arm itself just up to the point where their resources would trigger preemptive war by this policy, or to conceal exactly those assets or plans that are likely to trigger preemption. Announcing preemption policies in detail thus increases dangers to a nation.
43. Ceumans (2002: 282) argues that there are different conditions for the use of preventive war against states, compared with non-states.
44. If all nations that constitute a substantial threat are deterrable, and means of deterrence such as mutually assured destruction are available, then announcing and following a policy of never initiating preemptive war is advisable. It reduces the perceived threat to other nations by the nation that has announced such policies, assuming some modicum of believability and of observable weapons development and deployments consistent with those policies. I assume, however, that we have entered a new world in which not all nations and organizations that constitute a substantial threat are deterrable.
45. I thank Stephen Kershner, David Hershnenov, Peter Sinden, Kenneth Shockley, James Hurtgen, and Alan W. Dipert for comments on earlier versions of this paper. An older debt of gratitude is owed to my former mentors at the US Military Academy, Paul Christopher, Anthony Hartle and Peter Stromberg.