Preemption: Military Action and Moral Justification

PREEMPTION

The Changing Character of War Programme is an inter-disciplinary research group located at the University of Oxford, and funded by the Leverhulme Trust.

Preemption Military Action and Moral Justification

HENRY S HU E A ND DAVID RO D I N

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Great Clarendon Street, Oxford ox2 6 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © The several contributors 2007 The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging-in-Publication Data Shue, Henry. Preemption: military action and moral justification/Henry Shue and David Rodin. p. cm. Includes bibliographical references and index. ISBN 978–0–19–923313–7 (alk. paper) 1. War—Moral and ethical aspects. 2. Preemptive attack (Military science) 3. Security, International. I. Rodin, David. II. Title. U22.S523 2007 172
.42—dc22 2007017531 Typeset by SPI Publisher Services, Pondicherry, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn, Norfolk ISBN 978–0–19–923313–7 1 3 5 7 9 10 8 6 4 2

Contents Notes on Contributors Introduction Henry Shue and David Rodin

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1. Preemption and Prevention in Historical Perspective Hew Strachan

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2. Preventive War and US Foreign Policy Marc Trachtenberg

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3. On Getting One’s Retaliation in First Suzanne Uniacke

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4. The False Promise of Preventive War: The ‘New Security Consensus’ and a More Insecure World Neta C. Crawford

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5. Justifying Preventive War Allen Buchanan

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6. The Problem with Prevention David Rodin

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7. Preventive War and Human Rights David Luban

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8. Preventive War, What Is It Good For? Walter Sinnott-Armstrong

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9. What Would a Justified Preventive Military Attack Look Like? Henry Shue

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Index

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Notes on Contributors Allen Buchanan is James B. Duke Professor of Philosophy and Public Policy at Duke University in Durham, North Carolina. His research and teaching are mainly in political philosophy and the philosophy of international law and in bioethics. His most recent book is Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, 2004). Neta C. Crawford is Professor of Political Science at Boston University. Her most recent articles about preemption, preventive war, and US military strategy have appeared in Journal of Political Philosophy, Perspectives on Politics, Orbis, and Ethics and International Affairs and in Mark Evans, ed., Just War Theory: A Reappraisal (Edinburgh University Press, 2005). She is the author of Argument and Change in World Politics: Ethics, Decolonization and Humanitarian Intervention (Cambridge University Press, 2002), which won the Jervis-Schroeder Award for Best Book in International History and Politics in 2003. David Luban is University Professor at the Georgetown University Law Center. He works in legal ethics, international criminal law, and just war theory. His most recent books are Legal Ethics and Human Dignity (forthcoming from Cambridge University Press in 2007) and a textbook, International Criminal Law (with Julie O’Sullivan and David Stewart, forthcoming from Aspen Publishing in 2007). His papers include ‘Preventive War’, published in Philosophy & Public Affairs (2004). David Rodin is Research Fellow in Philosophy at the Changing Character of War Program, University of Oxford, and Senior Research Fellow at the Centre for Applied Philosophy and Public Ethics, the Australian National University. His research covers a wide range of topics in moral philosophy including the ethics of war and conflict, business ethics, and international justice. He is the author of War and Self-Defense (OUP, 2002), which was awarded the American Philosophical Association Sharp Prize, and is coeditor of The Ethics of War: Shared Problems in Different Traditions (Ashgate, 2006). Henry Shue is Professor of International Relations, University of Oxford, and Senior Research Fellow, Merton College. Best known for Basic Rights (Princeton, 1980; 2nd edn, 1996) and ‘Torture’ (1978), he also edited Nuclear Deterrence and Moral Restraint (Cambridge, 1989). His recent articles have included a connected series on climate change as well as ‘Let Whatever Is Smouldering Erupt? Conditional Sovereignty, Reviewable Intervention, and Rwanda 1994’, ‘Limiting Sovereignty’, ‘Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions’ (with David Wippman), ‘Bombing to Rescue? NATO’s 1999 Bombing of Serbia’, and ‘War’.

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Walter Sinnott-Armstrong is Professor of Philosophy and Hardy Professor of Legal Studies at Dartmouth College. He has published articles on war, terrorism, and nuclear deterrence, as well as consequentialism and many other topics. His most recent books include a collection of Perspectives on Climate Change (Elsevier, 2005) and a monograph on Moral Skepticisms (OUP, 2006). He is completing three volumes of original essays by philosophers and psychologists on Moral Psychology (MIT, 2007). Hew Strachan is Chichele Professor of the History of War at Oxford University, Director of the Leverhulme Programme on the Changing Character of War, and a Fellow of All Souls College. He is also a Fellow of Corpus Christi College, Cambridge, and Visiting Professor at the University of Glasgow. His most recent books are To Arms (2001), the first of three volumes on World War I, and The First World War: A New Illustrated History (2003). Marc Trachtenberg is currently Professor of Political Science at the University of California at Los Angeles. He did his graduate work at Berkeley and then taught history for twenty-six years at the University of Pennsylvania. He is the author of a number of works on international politics in the twentieth century, most notably a book on the Cold War that took him twenty years to write: A Constructed Peace: The Making of the European Settlement, 1945–1963 (1999). An article of his dealing with the preventive war issue in the early nuclear age, ‘A “Wasting Asset”: American Strategy and the Shifting Nuclear Balance, 1949–54’, appeared in the Winter 1988–9 issue of International Security, and was republished in his book History and Strategy (1991). Suzanne Uniacke is Reader in Applied Ethics at the University of Hull. Before moving to the United Kingdom in 2001 she taught philosophy in Australia. She has published widely in ethics, applied ethics and philosophy of law, on issues of responsibility, moral norms, justification and excuse, self-defense, provocation, revenge, double effect, and moral problems of life and death. Her publications include Permissible Killing: The Self-Defense Justification of Homicide (Cambridge University Press, 1994); ‘Why is Revenge Wrong?’, Journal of Value Inquiry (2000); and ‘Self-Defence and Just War’, in Gerechte Kriege, (Hrsg.) Dieter Janssen & Michael Quante (Paderborn: Mentis-Verlag, 2002). She is editor of the Journal of Applied Philosophy.

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Introduction Henry Shue and David Rodin

I call it a Defense dictated by expediency, when we make war through fear that we may ourselves be attacked. No one is more quickly laid low than one who has no fear, and a sense of security is the most common cause of disaster. . . . What follows is more doubtful, namely, the question when a matter may be said to have reached the point where it is necessary to resort to that expedient Defense. A just cause for fear is demanded; suspicion is not enough. . . . But to conclude, a Defense is just which anticipates dangers that are already meditated and prepared, and also those which are not meditated, but are probable and possible. This last word, however, is not to be taken literally, for in that case my statement would be that it is just to resort to a war of this kind as soon as anyone becomes too powerful, which I do not maintain. 1 Alberico Gentili, Regius Professor of Civil Law, University of Oxford, 1598 Give me the order to do it and I can break up Russia’s five A-bomb nests in a week. And when I came to Christ, I think I could explain to Him why I wanted to do it now before it’s too late. I think I could explain to Him that I had saved civilization. 2 Maj. Gen. Orville Anderson (USAF), Commandant, U.S. Air War College, 1950 We do not believe in aggression or preventive war. Such a war is the weapon of dictators, not of free democratic countries like the United States. 3 Harry S. Truman, President, United States, 1950 1 Alberico Gentili, De Iure Belli Libri Tres ([1598] 1612), tr. by John C. Rolfe (Oxford: At the Clarendon Press, 1933), vol. II, bk. I, ch. XIV [96, 99, and 106], 61, 62, and 66. 2 Allen Rankin, ‘U.S. Could Wipe Out Red A-Nests in a Week, Gen. Anderson Asserts’, Montgomery Advertiser, September 1, 1950; quoted in Jeffrey Record, ‘Nuclear Deterrence, Preventive War, and Counterproliferation’, Policy Analysis [Cato Institute], no. 519 (July 8, 2004), 14. 3 ‘Text of Truman’s “Report to the Nation” on Korean War’, New York Times, September 2, 1950; quoted in Jeffrey Record, ‘Nuclear Deterrence, Preventive War,’ 15. President Truman fired Gen. Anderson, 14. The previous month the US Secretary of the Navy had advocated that Americans become ‘aggressors for peace’—New York Times, August 25, 1950, 1; quoted in Marc Trachtenberg, ‘A “Wasting Asset”: American Strategy and the Shifting Nuclear Balance, 1949–54,’ in History & Strategy (Princeton, NJ, 1991), 100–52, at 117; International Security, 13: 3 (Winter, 1988–9), 5–49, at 20.

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Introduction I.1. CONFLICTING CONCEPTIONS OF PREEMPTION

This volume attempts a genuinely interdisciplinary look at issues about preemptive attacks and preventive wars. One of the ineliminable bedevilments of interdisciplinary scholarship is differences in the use of terminology, and, most troublesomely, different meanings across disciplines for the very same term. We confront differences between disciplines, changes in meaning within a given discipline (strategic theory), and disagreements within a given discipline (normative theory).

I.1.1. Differences between Disciplines Recent normative theorists have usually insisted that an attack is preemptive only if it is a response to an imminent attack on the preemptor—in the words of David Rodin’s chapter, ‘ “anticipating” an aggressor who is literally poised to attack.’ Strategic theorists early on used the very same term, ‘preemption’, to mean, as Hew Strachan’s chapter phrases it, ‘surprise to secure an initial military advantage in operational terms’. Or, as Strachan also puts it: ‘Preemption was an idea that grew from the operational level of war; it was a military concept, whereas preventive war was a political one. . . . Linked to stratagem, ruse and deception, it [preemption] embodied the core strategic principle of surprise in war.’ Preventive war, on the other hand, is a political choice to start a war: ‘the initiation of war, through an attack on the enemy, for fear of deterioration in the military balance between the two sides.’ Neither body of theory, normative or strategic, of course, owns the term ‘preemption’ nor is in a position to dictate how it is used by the other or by people generally. Roughly speaking, early strategists were describing one phenomenon, surprise attacks, while normative theorists are evaluating something else, a response to an impending attack so rapid that the response, if successful, lands on the attacker before the attack hits the preempting defender. Thus, Hew Strachan observes: ‘the attack on Pearl Harbor was undoubtedly a case of preemption’—yes, in the early strategists’ sense, which he is using; but not in the normative theorists’ sense, which he does not claim to be using, since Japan was not rushing to get ahead of a US attack that it expected imminently. The normative conceptions of preemptive attack and preventive war can be made mutually exclusive by requiring, by definition, that a military action is preemptive only if it responds to an imminent attack and that a military action is preventive only if it does not respond to an imminent attack. The strategic conceptions proved more fluid than the normative conceptions and, as Strachan observes, on occasion ‘preemption was bleeding into prevention’, that is, the only way to achieve surprise was thought to be to launch a preventive war.

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I.1.2. Change within a Discipline Strachan charts two fundamental shifts in the meaning of preemption. First, the arrival of nuclear weapons led to a modification in strategists’ understanding of preemption: preemption ‘was an attack in a war initiated by the enemy. . . . The key presumption was that, in political terms, the enemy had begun the process, which was emphatically not what preemption, a more narrowly operational concept, had implied in the past. This reading of preemption was a direct consequence of nuclear weapons and nuclear deterrence.’ We suggest that the nuclear conception of preemption, in contrast with the pre-nuclear operational conception, had, in effect, now incorporated the same necessary condition of imminent attack that many normative theorists had been insisting on. As of the nuclear age, strategic theorists as well as many normative theorists became unwilling to categorize a military action as preemption unless it was a response to a threat of imminent attack. To this extent the gap between the disciplines had closed. The now widely accepted proposition that an attack is preemptive only if it responds to an imminent attack may constitute an attempt to define preemptions in the way that makes it the most plausible that they are justified, although whether even preemptions so strictly defined are justified remains contentious. 4 The argument for justification goes as follows. What is a good reason to doubt that an attack is justified? Answer: the fact that the attack is a first use of force against an agent who has not [yet] used force. Then how can a preemptive attack, which certainly attempts to strike first, be justified? Answer: because it is a defensive use of force even though it is a first use of force. Preemption looks suspicious because it is the first use of force, and because the first use of force is usually aggression, or anyhow some form of unjustified attack. But preemption can be a justified attack because it is a defensive attack, however paradoxical this may sound; and it is a defensive attack because, far from initiating the conflict, it is a response to an impending unjustified attack. If a military action is a preemption, it is justified because it is a defensive response to an unjustified attack about to occur. Second, however, Strachan also charts a more disturbing shift in meaning, this time among American politicians, not strategic theorists: the recent collapse in much US political thinking of the valuable distinction between preemptive attack and preventive war. As David Luban noted in his pivotal article about the 2002 National Security Strategy, when the Bush administration says ‘preemption’, it 4 A literal reading of the Charter of the United Nations, Article 51 (‘if an armed attack occurs’) appears to rule out justified use of force prior to attack. This reading is supported by prominent international lawyers; see, e.g. Ian Brownlie, International Law and the Use of Force by States (Oxford: at the Clarendon Press, 1963), 275–8; Ian Brownlie, ‘The U.N. Charter and the Use of Force, 1945– 1985’, in Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force (Dordrecht, the Netherlands: Martinus Nijhoff, 1986), 499; and Yoram Dinstein, War, Aggression and Self-Defense, 4th edn (Cambridge: Cambridge University Press, 2005), 182–7. Others argue that this language ought not to be taken literally—see, e.g. D. W. Bowett, Self-Defense in International Law (Manchester, UK: Manchester University Press, 1958), 187–93; and Gareth Evans, ‘When Is It Right to Fight?’, Survival, 46: 3 (Autumn 2004), 59 and 64–5.

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Introduction

means preventive war. 5 Strachan briefly suggests that the US adoption of a policy of preventive war came decades earlier. Strachan cites Richard Barnet’s observation that ‘in the 1950s and the early 1960s the United States used its military power or paramilitary power on an average of once every eighteen months either to prevent a government deemed undesirable from coming to power or to overthrow a revolutionary or reformist government considered inimical to America’s interests.’ 6 Strachan concludes: ‘America’s interventions were not preemptive attacks but preventive war.’

I.1.3. Disagreement within a Discipline Sixteenth-century Oxford Professor Alberico Gentili, quoted in this volume by both Neta Crawford (ch. 4) and Hew Strachan (ch. 1), had famously asserted: ‘No one ought to wait to be struck unless he is a fool’—ambiguous in itself between operational advice in favor of preemptive attack or political judgment in favor of preventive war—but had gone on to offer as adequate grounds for striking merely an attack ‘which may possibly be committed’, which seemed to bring him down firmly on the side of preventive war. 7 Defining preemption in contrast to preventive war, which he maintains is unjustified, Michael Walzer made being a response to, not merely a possible attack, but an actual, imminent attack a necessary condition of being, in the strict sense, a preemption: ‘preemption on this view is like a reflex action, a throwing up of one’s arms at the very last minute. But it hardly requires much of a “showing” to justify a movement of that sort. Even the most presumptuous aggressor is not likely to insist, as a matter of right, that his victims stand still until he lands the first blow.’ 8 Since Walzer is here interpreting Daniel Webster and the Caroline precedent, which is discussed in a number of chapters in this volume, we will refer to the conception of preemption on which an attack is preemptive only if it is a response to an imminent threat as the Websterian conception. Probably most current writers get the Websterian conception from Walzer. Walzer himself offers a justification for what he calls responses to ‘sufficient threat’, which is designed by Walzer specifically to be a more permissive conception than Websterian preemption, which Walzer believed already in 1977, when his first edition was published, was too restrictive. 9 The 2002 National Security Strategy sometimes uses, knowingly or unknowingly, the Walzerian phrase 5

David Luban, ‘Preventive War’, Philosophy & Public Affairs, 32: 3 (Summer 2004), 207–48. Richard J. Barnet, ‘The Costs and Perils of Intervention’, in Michael T. Klare and Peter Kornbluh (eds), Low Intensity Warfare: Counterinsurgency, Proinsurgency, and Antiterrorism in the Eighties (New York: Pantheon Books, 1988), 210. 7 Gentili, De Iure Belli ([1598] 1612), vol. II, bk. I, ch. XIV [98], 62; excerpted in Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 2001), 18. 8 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th edn (New York: Basic Books, 2006), 74–5. 9 Ibid. 81. 6

Introduction

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‘sufficient threat’, but presents the Websterian conception of ‘imminent threat’ as the traditional understanding that, the document suggests, we ought to ‘adapt’, that is loosen. 10 This is only one of the smaller sources of confusion in that mystifying document. Thus Walzer formulates the Websterian conception of preemption according to which preemption is justified because it is a defensive response to an impending attack. Whether the defensive response is a surprise to the initial attacker is irrelevant to the normative thesis. And, as on many matters, recent normative theorists of war have generally adopted this Websterian conception of preemption as early defense, laid out so influentially by Walzer. Not, however, Suzanne Uniacke, who offers in her chapter an analysis of preemptive action that not only does not depend on preemption’s being defensive but contrasts the paradigm case of preemptive action with defensive action: ‘Preemption in this central sense aims to prevent the development of a situation that would require self-defense. . . . I mostly use the term “preemption” in this central sense in which it refers to the use of force for prevention and contrasts with self-defense.’ 11 And since the main purpose of preemptive action, as understood by Uniacke, is prevention, she does not employ the contrast between preemption and prevention drawn by Walzer and adopted by many other theorists, including several others in this volume. She also sketches a second, very restricted, almost technical sense of ‘preemption’ which is fairly close to the strategists’ original pre-nuclear operational sense and in which preemption could nevertheless be self-defense. Since someone can have committed aggression prior to striking a blow, by having acted so as to be ready to strike a blow, the intended target can at the same time engage both in preemption, in the sense of attempting to prevent a possible blow, and in selfdefense, in the sense of attempting to ward off an actual aggression. 12 In the end, since it is impossible to legislate how everyone else should use the term, the least that one must do is to be highly alert to issues such as (a) whether people who talk and write of ‘preemption’ are referring (i) to surprise attacks, which may or may not be responding to a threat of imminent attack, or (ii) to responses to imminent attacks, which may or may not be a surprise to the attackers attacked; and (b) whether (i) preemption is being fully contrasted with prevention, (ii) preemption can have prevention as one of its purposes, or, as Strachan observes of contemporary US political rhetoric, (iii) no systematic distinction at all is being observed between ‘preemption’ and ‘prevention’. If preemption is restricted to responses to imminent attacks, then it will be contrasted with prevention of possible attacks; this is the Walzerian account of the Websterian conception, which Walzer thinks is too restrictive but which strategists adopted, according to Strachan, for a time after the advent of the nuclear age. 10 ‘United States, White House, National Security Council’, National Security Strategy of the United States of America (September 2002), 15 [hereafter: 2002 NSS]. http://www.whitehouse.gov/ nsc/nss/2002/nss.pdf (accessed 12/12/2006). 11 Uniacke, ch. 3 in this volume, 75. 12 See Suzanne Uniacke, ch. 3 in this volume, n. 16.

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Introduction

In the 2002 Pentagon Dictionary of Military and Associated Terms, preemptive military action is defined as ‘an attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent’, and preventive war is defined as ‘a war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk’. 13 This adopts the Websterian conception of preemption and makes the difference turn on the fact that preemption occurs when attack ‘is imminent’ and preventive war is launched when conflict is ‘not imminent.’ By the Pentagon definitions the Bush doctrine is unequivocally preventive war, not preemptive attack.

I.2. GENERAL PREVENTIVE-WAR THINKING Previous justifications for preventive war have tended to come from opposite directions and to meet in the middle. On the one hand, the weak, precisely because they are weak, are sometimes said to be entitled to attack first. In his classic 1598 discussion of preventive war Gentili quotes, as ‘reasonable’, the explanation of their conduct toward the Athenians put by Thucydides into the mouths of the people of Mytilene: If we seem to any one unjust, because we revolted first without waiting until we knew clearly whether they would do us any harm, such a man does not consider well; for if we had been equally strong, so that we could have plotted against them in turn and could have delayed with safety, then his words would be just. But since they always have the opportunity of doing harm, we ought to have the privilege of anticipating our Defense. 14

On the other hand, it is often said to be only rational for a strong power who expects to have to fight sooner or later and who believes its adversary to be growing in strength to choose to fight sooner rather than later. Graham Allison has put this colloquially, although not approvingly, as follows: ‘I may some day have a war with you, and right now I’m strong and you’re not. So I’m going to have the war now.’ 15 As phrased by Allison, this is a claim about rational self-interest. To be made into a potential justification, the claim would need some such presupposition as that nations are always entitled to pursue their rational self-interest, or perhaps, can never reasonably be expected not to pursue their rational selfinterest, presuppositions that are far too extreme to be granted. The claim by the people of Mytilene on the grounds of weakness, not strength, might similarly be a claim about rational self-interest: it would not be in our interest to wait, given our unequal position, and therefore it would not be reasonable of you to expect us to wait. Or it might contain the germ of a moral argument on behalf of the 13 DoD Dictionary of Military and Associated Terms, Joint Publication 1–02 (Washington, DC: Department of Defense, April 12, 2002), 33 and 336; quoted in Record, ‘Nuclear Deterrence, Preventive War’, 11. 14 Gentili, De Iure Belli, bk. I, ch. XIV [101], 63. 15 David Sanger, ‘Beating Them to the Prewar’, New York Times, September 28, 2002.

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weak: the weak are much more vulnerable to abuse and attack, and they have far less certain recourse to self-help in the event that their rights are threatened, so they are permitted to try to defend themselves when they still might have a chance to succeed. Actually, as Clausewitz observed, the fundamental issue about self-interest ‘has nothing to do with the relative strength of the two sides, although one might suppose that to be the main consideration’, but with whether time is on your side or against you: ‘waiting until things take a better turn . . . assumes that there is ground for this to happen. That prospect always underlies a “waiting war”—that is, a defensive war. The offensive—that is exploiting the advantages of the moment– is advisable whenever the future affords better prospects to the enemy than it does to us.’ 16 But it would not be reasonable to expect waiting, by either the strong or the weak, only if, as Clausewitz may simplistically have assumed, it is never reasonable to expect an agent in international affairs to do anything other than attempt to maximize its own interest as it understands it. If it were never reasonable to expect an international actor to do anything other than pursue what it takes to be its own interest, our task in this volume would be finished: we could simply say that every nation is free to engage in preventive war whenever it considers preventive war to be in its interest, or perhaps whenever preventive war was really in its selfinterest. Questions of right and wrong understood as involving the interests of others would then simply not come up, and international affairs would be merely the naked clash of perceived self-interest that it is often superficially described as being. Fortunately, it is perfectly reasonable to demand that national leaders heed human interests besides the interests of their own citizens or subjects, especially interests important enough to be protected by rights, like the right not to be killed arbitrarily.

I.3. AMERICAN PREVENTIVE-WAR THINKING John Lewis Gaddis has maintained that preventive war was actively conducted by President Andrew Jackson, who decided not to allow ‘a few thousand savages’ to stand in the way of ‘liberty, civilization, and religion’. 17 Marc Trachtenberg’s chapter in this volume documents instances of the poorly understood role played by preventive-war thinking in US foreign policy from the late 1930s to the current 16 Carl von Clausewitz, On War, ed. and tr. by Michael Howard and Peter Paret (Woodstock, Oxon. and Princeton, NJ: Princeton University Press, 1984), bk. 8, ch. 5, 601. Emphasis in original. Clausewitz goes on to say what is often not recognized to be his view: ‘Two Kinds of Limited War Are Possible: Offensive War with a Limited Aim, and Defensive War’, 602. 17 John Lewis Gaddis, Surprise, Security, and the American Experience (London and Cambridge, MA: Harvard University Press, 2004), 18. Also see Sean Michael O’Brien, In Bitterness and in Tears: Andrew Jackson’s Destruction of the Creeks and Seminoles (New York: Praeger, 2003). In her chapter Neta Crawford chronicles Benjamin Franklin’s mission in 1757 to urge the British to attack the French in Canada as well as the Roman Empire’s standard policy of preventive war.

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time. Preventive war has been a regularly repeated suggestion in US politics, seriously considered but not carried out as such by presidents like Harry S. Truman 18 and John F. Kennedy. 19 Even when preventive wars have not been launched, however, American political thinking has, according to Trachtenberg’s chapter, been deeply influenced by elements of both ‘preemption’ and ‘preventivewar’, concepts that Trachtenberg finds share a highly porous border. In 1953, for instance, President Eisenhower wondered to Secretary of State Dulles whether ‘our duty to future generations did not require us to initiate war at the most propitious moment that we could designate.’ Trachtenberg interprets the consideration of this option as follows: The United States, of course, never actually implemented a ‘preventive war’ strategy of this sort, but that does not mean that this kind of thinking had no effect on policy. It was, in fact, one of the elements in the policy mix—one of the ingredients in the matrix out of which policy emerged. It was one of the main factors that led U.S. leaders to take a relatively tough line on a whole range of specific issues. . . . If the Soviets were unwilling to pull in their horns even when they were weak, then perhaps war with them was inevitable, in which case it might be important to have it out with them before matters became totally unmanageable.

Similarly, the Kennedy administration in 1962 reasoned that the United States would ‘have to take a relatively hard line on the Cuban [nuclear missile] issue because of a calculation about something that might happen down the road— because of something the Soviets might well do in the near future in Berlin.’ Better war now over Cuba than later over Berlin. Trachtenberg’s general conclusion is: The sort of thinking one finds in the Bush policy documents is not to be viewed as anomalous. Under Roosevelt and Truman, under Eisenhower and Kennedy, and even under Clinton in the 1990s, this kind of thinking came into play in a major way. Concerns 18 Besides the chapter by Trachtenberg in this volume, see Nina Tannenwald, The Nuclear Taboo (Cambridge: Cambridge University Press, 2007), ch. 3, ‘Hiroshima and the Origins of the Nuclear Taboo’. 19 In addition to the chapter in this volume by Trachtenberg, see, on Kennedy and the notion of preventive war, Record, ‘Nuclear Deterrence, Preventive War’, 13–14. On the role of the putative analogy between a proposed US strike on Soviet missiles in Cuba and Pearl Harbor, see Ernest R. May and Philip D. Zelikow (eds), The Kennedy Tapes: Inside the White House During the Cuban Missile Crisis (London and Cambridge, MA: Belknap Press of Harvard University Press, 1997), 121, 143, 149, 189, 196, 244, and 265. On the rejection by President Kennedy—and President Lyndon B. Johnson— of preventive war intended to prevent Chinese acquisition of nuclear weapons, see William Burr and Jeffrey T. Richelson, ‘Whether to “Strangle the Baby in the Cradle”: The United States and the Chinese Nuclear Program, 1960–64’, International Security, 25: 3 (Winter 2000–1), 54–99. President Kennedy did, however, concede in his speech to the nation of October 22, 1962 on the Cuban Missile Crisis, in words he drafted himself: ‘We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive, and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.’— Theodore C. Sorensen, Kennedy (New York: Bantam Books, 1966), 789.

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about the future—about what might happen if nothing were done—weighed heavily on American policy during the period from 1941 through 1963 and beyond.

Of the five nuclear attack options available to President Nixon in 1969, three were preemptive; the smallest preemptive attack would have used 1,750 nuclear weapons. 20

I.4. ARGUMENTS FROM INEVITABILITY AND ARGUMENTS FROM CATASTROPHE The general arguments about whether preventive war will maximize perceived self-interest do not appear to be the only rationale offered by the Bush administration, even if they are also occasionally thrown into the justificatory stew without much examination. Another Bush rationale centers on alleged extraordinary danger. 21 Far from its being asserted merely that winning later will be more difficult, or more costly, than winning sooner—that is, sooner is better if war is inevitable— it is being said that if preventive military action is not taken, a catastrophic attack of a magnitude only made possible by weapons of mass destruction (WMD) is likely to occur. This catastrophic attack will inflict wrongful, intolerable, and, of course, irreparable harm on large numbers of human beings. 22 The key current contention, then, may be not simply that sooner is better, but that avoidable catastrophe must not be tolerated. In various respects the current arguments from catastrophe, as we will call them, are superior to the traditional arguments from inevitability. The general arguments for preventive war had a suppressed premise, noticed by Clausewitz: ‘war is unavoidable.’ 23 If one compares (B) fighting now while relatively stronger only with (C) fighting later when relatively weaker, (B) is clearly more in one’s own interest than (C). These may, however, not be the only options. The most notable other possibility is: (A) no war—not fighting either now or later. Even a Clausewitzian, or rather, especially a Clausewitzian, would readily agree that (A) is, other things equal, preferable to both (B) and (C). Most arguments for preventive war arrive at ‘sooner is better than later’ because they ignore the 20 United States, White House, ‘Memorandum for Dr. Kissinger’, From: Laurence E. Lynn, Jr., Subject: The SIOP, Classification: Top Secret/Sensitive (November 8, 1969), 2. http://www.nd.edu/ ∼klieber/Foreign%20Affairs%20article%20documents/2005_SIOP-3.pdf (accessed 12/12/2006). 21 This contrast was put forcefully by Zahler Bryan. David Luban and Allen Buchanan have each presented versions of the contrast we are about to formulate in somewhat different terms. See David Luban, ‘Preventive War’, Philosophy & Public Affairs, 32: 3 (Summer 2004), 207–48, at 220; and Allen Buchanan, ‘Institutionalizing the Just War’, Philosophy & Public Affairs, 34: 1 (Winter 2006), 2–38, at 7–9. 22 Bush administration rhetoric tends to be expressed in terms of Americans and their allies, as if they were the only people who matter, but we discuss the less self-centered and more plausible version that acknowledges human equality. 23 Clausewitz, On War, 601.

10

Introduction

option of ‘never’, that is, they assume that war is inevitable, or at least highly likely. Hew Strachan’s chapter documents how often the assumption of the inevitability of conflict was in fact crucial to the arguments of the period he examines. Jeffrey Record sums up the traditional reasoning well: Preventive war is thus prompted, not by a looming enemy attack, but rather by long-range calculations about power relationships, and it is attractive to states that believe themselves to be in decline relative to a rising adversary. Preventive war assumes that conflict with the rising state is inevitable, and therefore striking before the military balance worsens becomes imperative. Thus, the Japanese in 1941. . . . 24

Fortunately, in the world of human freedom, not everything is inevitable. Further, the inevitable ‘in the words of C. Vann Woodward, needs all the opposition it can get because it is usually unpleasant.’ 25 In addition, a skeptic could always ask of the traditional arguments from inevitability: even if sooner is somewhat better, how much better? Perhaps a later war, if it occurred, would in fact be more costly than an earlier war, if one chose to start it, but one can with justification knowingly and voluntarily launch a war, with all its predictably unpredictable horrors, only if the difference in costs between waiting and not waiting is far, far more than marginal. 26 Perhaps the difference between sooner and later will be insignificant (with or without discounting). By contrast, the significant difference is built into the terms of arguments from catastrophe: without war, intolerable catastrophe; with war, catastrophe avoided. Many important questions need to be asked about arguments from catastrophe, but first we need to see that they come in two importantly different forms that respectively raise different questions: appeals to the right of self-defense and appeals to the responsibility to prevent great evils. In essence—we look at each in more detail in turn—the two versions proceed as follows. The first version of the argument from catastrophe contends: if we do not initiate military action, we will suffer an avoidable catastrophe, and the right of self-defense entitles us to protect ourselves against the infliction of such a great harm. The second version contends: if we do not initiate military action, a great evil will be done, and we 24

Record, ‘Nuclear Deterrence, Preventive War’, 12. Barrington Moore, Jr., Reflections on the Causes of Human Misery and Upon Certain Proposals to Eliminate Them (Boston, MA: Beacon Press, 1973), 104. 26 This raises an interesting question about the applicability of discounting to comparisons between war sooner and war later: the extent to which the costs and harms in the future war should be discounted compared to costs and harms suffered today (if one engages in the kind of cost-benefit analysis that arguments for preventive war often presuppose). In much standard economics the value of money is time-based, so the present value of an equivalent dollar expenditure on a war in ten years is far less than the present value of the same dollar expenditure today, because of the effects of monetary interest. Does the same hold true for goods and bads such as pleasures and pains? Some common human behavior and preferences presuppose it does. Many will avoid pain today, knowing that they will thereby incur greater pain tomorrow. Whether these reactions are irrational is of course a much bigger question, but it is worth pointing out that any inclination in favor of preventive war now runs against any general preferencing of the avoidance of present harms over the avoidance of future harms. This may reinforce the point that the threshold difference between future harms and current harms must be very high indeed for it to be rational to choose a real war now over a possible war in future. 25

Introduction

11

have the responsibility to see that it is stopped. Obviously any given document might, by intent or muddle, appeal to both arguments, but first we need briefly to consider each on its own.

I.5. CATASTROPHE: PREVENTIVE WAR IN SELF-DEFENSE Even judged by the standards ordinarily applied to government documents, the 2002 National Security Strategy is vague, sketchy, and inconsistent. 27 Such extreme lack of precision in a document that purports to present a radical change in doctrine about the initiation of war is a serious failing. 28 For example, it says: ‘we must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.’ 29 Why is it relevant whether the concept of imminent threat can be ‘adapted’ or not? Imminent threat is the central requirement, as we have seen, for Websterian preemption, so this concept would be relevant only if the 2002 NSS were defending a doctrine of preemption. But in spite of the fact that the document keeps referring to what it is advocating as ‘preemption’, the main purpose of whatever policy is being advocated is to eliminate threats before they become imminent. The cover letter for the document over Bush’s signature says: ‘And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed.’ 30 A threat that is not fully formed is not an imminent threat on any recognizable concept of imminent threat.

I.5.1. Whatever The Policy Is, It Does Not Appear to Be Websterian Preemption And the same confusion persists in the follow-up document issued in March 2006: ‘When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption.’ 31 But this is precisely not the standard logic of Websterian preemption, which is, instead, to respond to threats that have not only materialized but become imminent. There is a great deal to be said in favor of not standing idly by while the danger of devastating attack materializes, as we will soon be acknowledging. But it is misleading to insist on labeling a military response preemption when it is much closer to what is now usually considered preventive war, as in the definitions quoted earlier from the Pentagon’s Dictionary of Military 27 The 2006 National Security Strategy adds verbosity without increasing depth or clarity. See United States, White House, National Security Council, National Security Strategy of the United States of America (March 2006) [hereafter: 2006 NSS]. http://www.whitehouse.gov/nsc/nss/2006/nss2006. pdf (accessed 12/12/2006). 28 If the thesis of the chapter by Trachtenberg in this volume is correct, any changes in doctrine are much less radical than advertised. 29 2002 NSS, 15. 30 Ibid. ii. 31 2006 NSS, 23.

12

Introduction

and Associated Terms. The honest question, as David Luban has emphasized from the beginning of the current debate, is: can preventive war ever be justified? Consequently, all who comment on the 2002 NSS—or the 2006 NSS—favorably or unfavorably are forced to begin by attempting in good faith to reconstruct what might have been meant. Plainly, whatever the proposed action is called, what is being advocated is closest to a form of preventive war. 32 Most commentators, including most of the authors of chapters for this volume, have taken the 2002 NSS to be presenting a justification for preventive war based on an appeal to the right of self-defense. The sentence from the cover letter quoted above appeals to self-defense, as does the 2006 NSS: ‘If necessary, however, under long-standing principles of self-defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack.’ 33 The fundamental question then is: can preventive war be an act of justified selfdefense? Why might it be thought that preventive war could not be justified selfdefense? David Rodin examines the major theoretical traditions that have contributed to the ethical and moral conception of self-defense (the consequentialist tradition, the necessity tradition, and the forfeiture of rights tradition) and concludes that on none of them can the permissibility of preventive self-defense be explained. But it is undeniably the last of these, the rights-based forfeiture account, that has most resonance for modern readers, and its tradition seems most vulnerable to arguments in favor of prevention. Roughly put, the traditional argument against the proposition that a preventive war might be a war of self-defense, examined in depth in a number of the chapters in this volume, is basically as follows. Selfdefense can be justified only against someone who has wronged you and if you have attacked someone preventively, you have attacked them before any wrong has been done by them. After all, the point of preventive attack is prevention: stopping the intended wrong from being committed—in Suzanne Uniacke’s words, ‘to prevent the development of a situation that would require self-defense.’ But, the contrary argument goes, if the wrong has indeed not been committed, someone who has committed no wrong is being attacked, and that cannot be justified selfdefense. The reply on behalf of the justifiability of some preventive war that is currently at the heart of the controversy was initially formulated by David Luban. 34 His formulation is discussed in most of the other chapters in this volume; and Luban’s own chapter presents his defense against the main criticisms. Since this multisided controversy is at the heart of this volume, and since the coeditors are themselves parties to the controversy, no futile attempt will be made here to provide a dispassionate and neutral account of the ongoing debate. Here we want 32 See e.g. either Luban, ‘Preventive War’, which is largely supportive, or Record, ‘Nuclear Deterrence, Preventive War’, which is largely critical. 33 2006 NSS, 23. The next two sentences, which were quoted in the preceding paragraph of text, throw matters into confusion by claiming mistakenly that what is being advocated as self-defense is preemption. 34 See Luban, ‘Preventive War’.

Introduction

13

only to give a brief indication of how this core controversy fits into the larger dispute. Luban’s fundamental contention draws on an analogy with the crime of conspiracy in domestic systems of law. Suppose a criminal organization is conspiring to carry out a number of murders, but the conspiracy is uncovered by the police before the murders can be committed. Plainly the organization’s members, through no lack of trying on their part, are not guilty of murder. Does this mean, then, that they cannot be charged with any crime? Certainly not, notes Luban: they can, if all the relevant criteria are satisfied, be charged with conspiracy to commit murder. Similarly, if terrorists conspiring to release a biological weapon in order to kill civilians were detected—and prevented by their being killed in a military attack—from executing their murderous plan, they did not, despite their own best efforts, succeed in committing the wrong of mass murder. Then, are those who launched the preventive attack themselves guilty of killing innocent people, people who had committed no wrong? Certainly not, suggests Luban: they may not have committed the wrong of mass murder, but they have committed the wrong of planning mass murder and taking steps to execute their plan. If their intended victims have killed the would-be killers in a preventive war, their intended victims have simply defended themselves, in a particularly effective manner and in an extremely timely—possibly, at their last possible opportunity—way. David Rodin is unpersuaded by the conspiracy account of preventive war. He argues that it leads to a kind of paradox. This is because an articulated doctrine of preventive war, like the 2002 NSS, shares the same formal structure as a conspiracy to attack. Both consist in the ‘manifest intent’ and ‘active preparation’ (to use Michael Walzer’s phrases) to inflict harm in the absence of an imminent threat. Because of this, argues Rodin, we face the paradoxical conclusion that if a conspiracy to inflict harm is wrong, then doctrines of prevention like the 2002 NSS are also wrong. On the other hand, if adopting a doctrine of prevention is not wrong, then presumably neither is engaging in a conspiracy to inflict harm, which implies that there can be no justification for preventive war itself (since war is only justified if it is an appropriate response to some salient wrong). Luban responds to the conspiracy paradox, and Rodin replies to the response, in one of the most sustained episodes of debate and interchange in the volume. Suzanne Uniacke presents a conception of self-defense that seems to us to be, in spite of initial appearances to the contrary, complementary to, or at the least, not incompatible with Luban’s conspiracy argument. As she understands general usage, ‘self-defense’ is a descriptive, not a morally determinative, term. That an action is self-defense does not carry the implication that it is justified; some acts of self-defense are justified and some are not. An act is an act of self-defense only if it is literally retaliation: a return of harm on someone who has actually attempted to inflict harm. A preventive act, including a preventive use of force, then, is ordinarily not self-defense because it is attempting to keep a possible harm from becoming actual rather than responding to its occurrence by retaliating. In order to be self-defense, an act must retaliate against an actual threat. So far, Uniacke’s view might appear to conflict with Luban’s.

14

Introduction

However, Uniacke distinguishes between (a) a future threat and (b) an actual threat of future harm. In the latter case the harm has not yet occurred, but the threat is real. Action in response to an actual threat can be retaliatory and thus be an act of self-defense. Uniacke notes that actual threats of future harm include at least three types. The harm can be (a) ‘some time off in its “delivery”, ’ (b) conditional, or (c ) contingent. As already mentioned, the simple fact that an act constitutes self-defense does not, on Uniacke’s view, guarantee that it is justified: not all acts of self-defense are justified. Yet provided Luban’s notion of a planned attack fell into one of the three types of actual threats of future harm, it could qualify as self-defense, which might then be justified. The full specific justification would, of course, need to be spelled out: why is this form of selfdefense in this situation a form of self-defense that is justified?

I.6. CATASTROPHE: THE RESPONSIBILITY TO PREVENT GREAT EVIL If Uniacke is correct, a use of force’s being in self-defense is not sufficient for its being justified. That is, the simple fact that a use of force would be in selfdefense does not settle, all by itself, whether that use of force is justified. We need to know the answers to quite a few other questions as well, such as, on the usual understanding of the justification of war, whether the force used was proportionate, discriminate, and in some sense the last resort. Sinnott-Armstrong, in his chapter in this volume, observes that even if being in self-defense were sufficient, as it does not appear to be, it would not follow that being in self-defense is necessary for being justified. That is, even if the fact that a use of force was in self-defense was a weighty factor in its favor, it would not follow that a use of force is justified only if it is employed in self-defense. Until some argument is given to show why not, it is possible that force may justifiably be used for purposes other than self-defense. It may still be necessary that the force be, say, proportionate, discriminate, and a last resort, but not be necessary that it be defensive. A use of force’s being self-defense may be neither sufficient nor necessary for its being justified. This leads us to the second version of the argument from catastrophe. Perhaps the contention that preventive war can be defensive, made powerfully here by David Luban, and that such defensive preventive war can satisfy whatever other conditions are the necessary conditions of the justifiable use of force, is convincing. If so, no other kind of justification would be needed. But it would nevertheless be worth considering, in addition, justifications of preventive war that do not proceed by way of the intermediate step of claiming that preventive war is defensive. And if Luban’s arguments are liable to some of the objections lodged against them in other chapters here, it is all the more important to consider other rationales for preventive war, in case they are more successful. If all war must fall into one or the other side of the defensive–aggressive dichotomy—not necessarily the case, as we shall soon see—perhaps situations arise in which aggression is

Introduction

15

justified. Perhaps the best defense is a good offense, but the good offense remains an offense—simply a justified offense. Any suggestion that a nondefensive use of military force could be justified has become heretical in the post-United Nations Charter world, but prior to the second half of the twentieth century, the concept of a just cause for war included additional grounds besides self-defense. Indeed, what has come to be called ‘the aggressor–defender paradigm’ of unjust and just war has been criticized by important scholars of various political stripes as a severe narrowing, or an impoverishment, of the concept of just cause. A. J. Coates observed: It is true that the idea of self-defense featured prominently in the traditional account of just war; but it did not exhaust the moral understanding of war in the way that it has tended to do latterly. . . . Some forms of vindication embraced the use of war in an offensive role, as in the commonly received view that princes had a prima facie duty to protect the innocent even when the innocent in question were not their own subjects. . . . It is perhaps this notion of a just offensive war that is most at odds with contemporary thinking. From a just war perspective, the problem with the prevalent aggressor–defender concept of war is its moral sterility: a distinction that appears to be defined primarily in physical or military terms is simply mixed up with the moral distinction between a just and an unjust war. 35

Earlier political theorist Robert W. Tucker and Christian theologian Paul Ramsey had argued that the defender–aggressor picture was reductive (and peculiarly American). 36 Now this important general debate about whether only defensive war can be justified war, and thus all nondefensive war is unjustified in being aggressive, goes far beyond anything we can take up here. 37 We mention the broader issue simply to demonstrate that responsible scholars of the morality of war, some with no particular axe to grind about preventive war in particular, contend that the aggressor–defender picture of war is a recent and reductive picture of the morality of war. Sinnott-Armstrong is thus quite right to say that it remains contentious whether the use of military force is justified only if it is defensive, and it is perfectly open to people to attempt to argue that a preventive war can be justified, either as permissible or even as a moral responsibility, in cases in which the war, while not a war of self-defense against an attack or an actual threat against oneself, is designed to prevent a catastrophe such as, most notably, use of WMD. 35 A. J. Coates, The Ethics of War (Manchester, UK: Manchester University Press, 1997), 157–8 [emphases in original]. Coates goes on to argue significantly that ‘the just war approach is both more restrictive (or exclusive) and more permissive (or inclusive) than the defender–aggressor paradigm’ (160). 36 See Robert W. Tucker, The Just War: A Study in Contemporary American Doctrine (Baltimore, MD: Johns Hopkins University Press, 1960); and Paul Ramsey, ‘What Americans Ordinarily Think about Justice in War,’ in Ulrich S. Allers and William V. O’Brien (eds), Christian Ethics and Nuclear Warfare (Washington, DC: Institute of World Polity, 1961); rpt. in The Just War: Force and Political Responsibility ([New York: Scribner, 1968 and] Savage, MD: Rowman & Littlefield, 1983), 42–69. Ramsey notes that Tucker allows for the ‘expansion’ of the concept of self-defense to include preventive war (45, n. 10). 37 The concept of self-defense and its place in the justification of war is explored in David Rodin, War & Self-Defense (Oxford: Clarendon Press, 2002).

16

Introduction

Unfortunately this is another situation that almost guarantees terminological confusion. Military action to defend the intended victims of, say, a catastrophic attack with WMD remains, in one sense of ‘defensive’, a defensive war: it is a war to defend, or protect, the intended victims. However, most of the time (but, unfortunately, not all the time) when people write about the aggressor–defender paradigm, they actually mean what could more literally be labeled the aggressor– self-defense paradigm: if you are not defending yourself, you are an aggressor. 38 A humanitarian intervention into Rwanda by Swedish troops would not ordinarily be described as ‘defensive war by the Swedes’, because the Swedes would not have been defending themselves, even though they would presumably have been defending the intended Tutsi victims against their attackers. Indeed, those who think humanitarian interventions are justified often view the interventions precisely as examples of why the aggressor–[self-]defender paradigm is simplistic and misleading. Again, no one is in a position to dictate how words are used, but it is essential for any given usage to be explicit and precise. Since we take the most common usage of ‘defensive’ implicitly to mean self-defensive—to be narrower than it looks—we will not refer to the use of force to defend others as a defensive use of force. In fact, the term ‘humanitarian intervention’ appears to have been coined precisely to describe military action that would not ordinarily be described as defensive but also cannot be described as aggressive, at least by those who consider it to be justified. 39 It might have been better to call intervention to defend others the protective use of force, but attempting to introduce yet another term at this stage may well be futile. 40 In any case, we will not refer to the use of military force to protect its intended victims against a possible catastrophic attack as defensive, instead reserving ‘defensive’ for cases of self-defense, as we believe ordinary usage does. The issue of substance remains: can a nondefensive use of military force—a use to protect others— be justified in being preventive? Assuming one can sometimes be justified in using military force on behalf of others, can one be justified in doing so specifically by means of preventive war? Sinnott-Armstrong, being committed to what is often called actconsequentialism, thinks ‘that an agent morally ought not to do an act if and only if that act has significantly worse consequences than any available alternative.’ Noting that other contributors to this volume, including Rodin and 38 We suspect that some people, who accept the aggressor–defender paradigm of war and who understand ‘defensive’ to mean in defense of oneself, feel compelled to argue that preventive war can be war in self-defense because they believe that there is no other possible justification of war. This is, however, not the case with David Luban, who long ago argued that a war need not be a war of selfdefense in order to be justified—see David Luban, ‘Just War and Human Rights,’ in Charles R. Beitz et al. (eds), International Ethics (Princeton, NJ: Princeton University Press, 1985), 195–202. 39 ‘Humanitarian intervention’ is in its own way highly misleading, mainly through seeming to many people to suggest that the motivation must be altruistic. Yet another matter we cannot pursue, this is well discussed by Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), 37–52. 40 See our discussion on pp. 18–19 of the ‘responsibility to protect’ and the critique of its application to the use of force in ch. 4 by Neta Crawford in this volume, 121–4.

Introduction

17

Uniacke, suggest that ‘until you have been wronged, you have no good enough reason to use force’, Sinnott-Armstrong maintains, on the contrary, ‘the reason for a preventive war is to prevent harmful attacks. That sure looks like a good reason. It simply begs the question to assume that this good reason is not good enough, at least when the prevented harms are much greater than the harms inflicted by the preventive war.’ The consequences of not fighting a preventive war, he contends, will sometimes be much worse than the consequences of fighting one. When this is the case, and when ‘other conditions [that] limit such wars to clear and extreme cases’ are satisfied as well, a preventive war may be the responsible course of action, with remaining passive while catastrophe strikes being far more irresponsible. Now, one of the main arguments in the chapter by David Rodin, who is deeply skeptical about all versions of consequentialism, is that specifically in the case of war the consideration of consequences is too uncertain and unreliable a guide to be trusted. He argues that this is true of act-consequentialism because it is often impossible to be sure of the long-term costs and benefits of a large-scale war. For example, even decades after it has ended, we still do not know the final moral balance sheet of World War II, and it may be that we never will. If act-consequentialism suffers from epistemological problems, these problems are greatly magnified in rule-consequentialism. Rodin argues that ruleconsequentialist approaches to war suffer from an ‘impasse problem’. Absent hard empirical data, philosophers and legal theorists typically put forward interpretative arguments about the likely consequences of different configurations of rules. These arguments often seem persuasive, but they can typically be matched by equally plausible arguments for precisely the opposite conclusion. Thus we quickly reach a paralyzing impasse between rule-consequentialist arguments for and against preventive war. These problems become more intractable still once we take into account the fact (ignored by many rule-consequentialists) that the compliance levels for a given rule can be strongly affected by its content. This generates particular difficulties in international relations where an enduring issue is how to persuade great powers to comply with rules that might restrict their ability to act. How can we reconcile a desire to foster the scope and effectiveness of international law by ensuring that great powers operate within legal structures and not outside them, while at the same time preserving the integrity and impartiality of those same legal structures? Rodin here picks up a theme of David Luban’s by considering—and rejecting—the suggestion that the United States, the world’s only superpower, ought to be given an exceptional status within international law with respect to norm on preventive war. Sinnott-Armstrong offers spirited rejoinders, arguing, among other things, that life is generally uncertain and that we are indeed often not sure what it is right to do. That careful consideration of consequences may leave us still with a difficult decision to make about what to do is as it should be: if life itself is messy, neat ethical principles are not what we need. And the fact that sometimes the balance of consequences is genuinely unclear, and that reasonable, well-motivated people disagree about what to do, is no reason at all to do nothing in situations in which

18

Introduction

inaction will very likely permit an avoidable catastrophe to occur when it could have been prevented at relatively very small cost. In this volume, then, the only well-worked out version of what we are calling the argument from catastrophe in the form of the responsibility to prevent great evil is Sinnott-Armstrong’s explicitly act-consequentialist variant. 41 It is important to see, however, that the debate between the proponents and the opponents of consequentialism is at a more abstract and more foundational level—a level that Sinnott-Armstrong calls, following Jeff McMahan, ‘deep morality’ 42 —than the debate over particular potential cases of preventive war. Any attempt to relate systematically the debate about consequentialism and the debate about preventive war, if possible at all, would be fraught with complications that we must set aside here. For example, while Jeffrey Record is not engaged in discussion of deep morality and does not characterize his own position in terms of foundational ethical theories, we would say that his important paper (not included in this volume) is a consequentialist critique of preventive war, arguing fundamentally that the consequences of attempting to deter the use of WMD are likely to be far superior to the consequences of attempting to prevent their acquisition by military force. 43 David Luban, a contributor to this volume, who is a defender of highly selective preventive war, is characterized, by some who agree with his position on preventive war (e.g. Sinnott-Armstrong) and some who disagree with his position on preventive war (e.g. Rodin), as a consequentialist, but he himself firmly rejects the label. 44 In this brief introduction we obviously cannot take it on ourselves to settle all the cross-cutting issues here, not least because we are parties to several of the disputes. A highly influential position, which has no theoretical foundations explicitly specified but at least appears to be open to defense on non-consequentialist grounds, is the view centered around the ‘responsibility to protect.’ 45 The fundamental thesis in this report of this international commission of eminent persons, established by the Canadian government, is that while ‘the primary responsibility for the protection of its people lies with the state itself ’, when ‘the state in question 41 Sinnott-Armstrong is not of course maintaining that one ought to act only to prevent catastrophes—one should also act in less extreme but reasonably clear cases favored by the balance of consequences—but his view would certainly include genuine instances of the kind of extreme case envisaged in 2002 NSS in which preparations for an attack with weapons of mass destruction were in fact underway. He emphasizes, however, that Iraq in 2003 was no such case. 42 See Jeff McMahan, ‘The Law of War and the Morality of War,’ in David Rodin and Henry Shue (eds), Just and Unjust Warriors: Moral Equality on the Battlefield (Oxford: Oxford University Press, forthcoming). 43 See Record, ‘Nuclear Deterrence, Preventive War’. Another important position is that acquisition may be preventable, but not by military attack—see Scott D. Sagan, ‘How to Keep the Bomb From Iran’, Foreign Affairs, 85: 5 (September/October 2006), 45–59. Sagan characterizes positions like Record’s as ‘proliferation fatalism and deterrence optimism’ [acquisition cannot be prevented but use can be deterred], which, Sagan argues, feed upon each other. 44 See the three final paragraphs of his chapter. 45 See ‘International Commission on Intervention and State Sovereignty’, The Responsibility to Protect (Ottawa: International Development Research Center, 2001).

Introduction

19

is unwilling or unable . . . the principle of non-intervention yields to the international responsibility to protect.’ 46 One clear implication is that military intervention may sometimes be justified on the basis of the international responsibility to protect, which is now often referred to as ‘R2P’. The report emphasizes that R2P is not merely a responsibility to react after tragedy has occurred: ‘The responsibility to protect means not just the “responsibility to react”, but the “responsibility to prevent” and the “responsibility to rebuild.” ’ 47 It is evident that while the responsibility to react was understood to include the use of military force, that is, to be what is often described as ‘humanitarian military intervention’, the responsibilities to prevent and to rebuild were taken to be mainly nonmilitary. The report does say, however: ‘In extreme cases, direct prevention might involve the threat to use force.’ 48 The natural next question would appear to be: how about the actual use of force? That question was taken up by the next relevant international commission of eminent persons, which was appointed this time by the Secretary-General of the United Nations (UN) and issued A More Secure World: Our Shared Responsibility. 49 Observing that ‘there is a growing recognition that the issue is not the “right to intervene” of any state, but the “responsibility to protect” of every state when it comes to people suffering from avoidable catastrophe’, 50 the High-level Panel concluded: We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent. 51

Next the 2005 World Summit at the UN provided what appears to be a rather hedged and murky endorsement of the use of preventive force by the UN under Chapter VII of the Charter, which was then adopted by the General Assembly: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes. . . . We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII . . . should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 52 47 Ibid. 17. 48 Ibid. 25. Ibid. XI. A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change (New York: United Nations, Department of Public Information, 2004), DPI/2367 [Sales no. E.05.I.5]. 50 Ibid. 65 [Part 3, para. 201]. 51 Ibid. 66 [Part 3, para. 203]. 52 General Assembly, United Nations, 2005 World Summit Outcome, A/RES/60/1 (October 24, 2005), para. 138–9. For a political analysis of the ambiguities of the language, see Maria Banda, ‘Crystallizing R2P: The Evolution, Interpretation, and Implementation of the Responsibility to Protect, 2001–6’, M.Phil. Thesis (Oxford, 2006), 30–44. 46

49

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Introduction

How, then, about preventive war authorized by the Security Council? Are the main dangers of preventive war perhaps a result of its usually resulting from decisions that were unilateral?

I.7. INSTITUTIONAL CONTEXT Of the many questions raised by this thought that multilateral authorization in the form of authorization by the UN Security Council might make a crucial difference, the central ones are taken up in the chapters by Neta Crawford and Allen Buchanan, each of whom also makes valuable contributions to other theoretical issues already discussed. Without denying the abstract distinction, drawn by Uniacke, between future threats and actual threats of future harm, Crawford observes that in current American practice, immanent threats come to seem to be imminent threats—the immanent/imminent line tends to erode: ‘the U.S. is already and always vulnerable.’ Combined with the entrenched tendency to construe US interests as global, recent US policymakers, Democratic as well as Republican, have tended to blur spatial as well as temporal lines, producing a sense of being actually threatened almost all the time almost everywhere. Capabilities are automatically construed as threats, without consideration of purposes. Selfdefense, when the self is understood expansively and immanent threats seem to be as dangerous as imminent threats, requires a great deal of offense if it is also granted that the ‘best defense is a good offense.’ 53 If the United States must defend itself all the time and everywhere, it must be on the offense all the time and everywhere. Crawford quotes Donald Rumsfeld: ‘The problem with terrorism is that there is no way to defend against the terrorists at every place and every time against every conceivable technique. Therefore, the only way to deal with the terrorist network is to take the battle to them. That is in fact what we’re doing. That is in effect self-defense of a preemptive nature.’ This makes a unilateral American policy of preventive war, according to Crawford, dangerous and disruptive, risking preventive war after preventive war. First, Iraq; then perhaps, Iran; next. . . . Surely, then, it might seem a requirement of UN Security Council authorization for preventive military action would safeguard against much of the danger. Not, argues Crawford, if the underlying logic and background picture of security and threat are the same; she quotes Secretary-General Kofi Annan’s view: ‘On this interconnectedness of threats we must found a new security consensus, the first article of which must be that all are entitled to freedom from fear, and that whatever threatens one threatens all. Once we understand this, we have no choice but to tackle the whole range of threats.’ Multilateral procedures are in some respects superior to unilateral ones, but they in general are no guarantee if the same security imaginary informs them. 53

2002 NSS, 6.

Introduction

21

Allen Buchanan observes that ‘the higher the stakes in acting, and in particular the greater the moral risk, the higher are the epistemic requirements for justified action.’ One needs the best possible grounds for believing one is correct when one risks committing a serious wrong if one is incorrect, and decisions to engage in preventive war are often criticized as irresponsible on the grounds that such decisions are likely to be based on inadequate evidence. Buchanan argues that whether such decisions are irresponsible depends on their context, especially their institutional context. One cannot assess preventive war in the abstract but must instead assess decisions to engage in preventive war as they are made in specific institutional contexts that provide more or fewer safeguards against irresponsible decisions. Well-designed institutions for decision-making about preventive war—in particular, what Buchanan calls ‘a multilateral accountability regime’— might address some of its distinctive risks. Buchanan and Keohane have earlier sketched and defended such a regime, which must be multilateral and have both ex ante and ex post accountability. The UN Security Council as it currently operates does not meet these conditions, so Buchanan is no more enthusiastic than Crawford is about recent policy directions at the UN. 54 This institutional approach aims at attaining the best combination of norms and institutions. The right norm for decisions about preventive war depends on the decision-making institutions available. If a multilateral accountability regime were functioning, norms could permit what would otherwise be riskier actions. A blanket prohibition on preventive war could be replaced with a more nuanced norm, but only if the accountability regime were in fact functioning. ‘Preventive war can be justified under conditions in which, relative to the costs of maintaining the prohibition on preventive war, the special risks of invoking the preventive war justification are adequately reduced by appropriate institutional arrangements. . . .’ Overall Buchanan’s chapter distinguishes four different arguments for a blanket prohibition on preventive war, two normally considered consequentialist and two considered rights based, and argues that the strength of all four depend on which background institutions are available, most specifically whether a multilateral accountability regime for decisions about preventive war is actually operating. He gives special attention to what he considers the most serious moral objection to preventive war: that although some may already have done harm by actively planning and preparing to attack, and so may justifiably be attacked, others who are uninvolved will also be killed in a manner that would make the preventive attack indiscriminate. In Chapter 9, Henry Shue tackles two tasks. First, he proposes a list of necessary conditions that any kind of preventive attack would need to satisfy in order to be justified. The list is acknowledged to be incomplete—other conditions are quite possibly also necessary—so the satisfaction of all these conditions would not be sufficient to justify a preventive attack. The main contention is only that at least these conditions are definitely required. In this respect, the list is intended as a modest proposal that would be acceptable to people who otherwise hold a 54

See also Allen Buchanan, ‘Institutionalizing the Just War’, 20, n. 15.

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Introduction

wide range of views. According to the arguments Shue makes in this chapter, any preventive military action must be: (a) limited to the effective elimination, including the prevention of the return, of the danger that justifies it; (b) undertaken only when military action is urgent; (c ) based on well-verified, solid intelligence collected by a highly competent agency; and (d) substantively multilateral, that is, based on principles justifiable on the basis of reasons broadly acceptable internationally. In the current political environment, the final condition is probably the most contested. Drawing on arguments in the chapters by Allen Buchanan and Neta Crawford, Shue articulates three converging arguments for what he calls ‘substantive multilateralism’, as distinguished from the more familiar procedural multilateralism. Secondly, and most fundamentally, he disagrees, on the one hand, with David Rodin’s contention that all preventive war is wrong in principle, granting that an attack might satisfy a complete list of necessary conditions. But Shue suggests, on the other hand, that it nevertheless is extremely unlikely that in reality very many, if any, attacks proposed would actually satisfy even a very modest list of necessary conditions like those defended in this chapter. Not a single one of the four necessary conditions for justifiability was satisfied by, for example, the AngloAmerican attack on Iraq in 2003. We cannot rule preventive war out in principle, but in practice it is difficult for preventive war to meet even the most minimal standards for the justified use of military force. We have, then, each drawn our own conclusions in our own chapters. We invite you now to enter into the rich, important, and ongoing debate occurring in the pages that follow and to draw your own conclusions about these fundamental issues of peace and war. How these issues are decided and acted on has implications quite literally for life and death.

1 Preemption and Prevention in Historical Perspective Hew Strachan

On December 7, 1941, the Japanese navy launched an attack on Pearl Harbor, the Hawaii base of the United States Pacific Fleet, sinking six battleships and disabling America’s sea power on its western coast for the immediate future. In the short term, the effects were sufficiently traumatic to unite the American nation in its resolve for war; in the long term, they have remained the cautionary example of the dangers both of surprise attack and of military unpreparedness. And yet US– Japanese rivalry in the Pacific was not a new phenomenon. Its origins reached back to at least 1914. The US administration may not have had any plans to go to war with Japan, but its chiefs of staff did have war plans: that is to say they recognized the possibility of hostilities and had collected their thoughts accordingly. For Japan itself the choices by 1941 seemed to be economic strangulation and geopolitical imprisonment on the one hand, or war on the other. 1 To argue that it therefore opted for preventive war is to stretch a point: it had no evidence that war with the United States was inevitable or that the United States itself had any intention to attack. But if not preventive war, the attack on Pearl Harbor was undoubtedly a case of preemption: it used surprise to secure an initial military advantage in operational terms. Until 1941 the example most often cited as an illustration of preventive war, at least in the context of modern European history, was that of Prussia’s initiation of the Seven Years War in 1756. Frederick the Great reckoned that an Austro–Russian alliance would attack him in the following year, and that it would probably be supported by France. If struck simultaneously from three directions, his nascent kingdom could well be overwhelmed and obliterated. His solution was to attack first, before the alliance could coordinate its actions. His decision was deemed to be adroit more than unethical: confronted with the possibility of a war in which the very survival of his kingdom would be at stake, Frederick had behaved prudently and wisely. The 1756 example shaped the understanding of preventive war in Europe at least until 1914, and probably until 1941. This is not to say that there was no ethical presumption against preventive war in early modern Europe. In De jure belli et pacis (1625), Hugo Grotius opposed the 1

See Marc Trachtenberg, ‘Preventive War and U.S. Foreign Policy’, ch. 2 in this volume.

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notion that an attack on another power could be justified by the argument that the future would be worse than the present. Such reasoning rested on the illusion, that absolute security existed. Powers which initiated preventive war did so largely out of fear, but that was an insufficient reason. Grotius was, however, content with the idea of wars that were necessary, and in the eyes of many commentators—as well of course of Frederick himself—the situation that Prussia confronted in 1756 fell within that category. Prussia went to war not to avert some possible future danger but to address a much greater probability of war and a more imminent threat. Its thrust was consequently defensive, and therefore—in Grotian terms—necessary, even if it used the offensive as the means to its defensive end. 2 Alberico Gentili, an Italian who became Regius Professor of Civil Law at Oxford in 1587, had been much more robust than Grotius, declaring in De jure belli (1588; revised edition 1598) that: ‘no one ought to wait to expose himself to danger. No one ought to wait to be struck unless he is a fool. One ought to provide not only against an Offense which is being committed, but also against one which may possibly be committed. Force must be repelled and kept aloof by force. Therefore one should not wait for it to come’. 3 Gentili was influenced by Machiavelli, who had argued in The Prince that the ruler who waits does not avoid war but gives the advantage to the enemy: the aim of war was, after all, to maintain the power of the state. In The Discourses, the regime that is the readier to intervene and to expand is the likelier to endure. 4 Machiavelli influenced Clausewitz as well as Gentili. Clausewitz, as a Prussian who had been born while Frederick the Great was still alive, was raised on the stories of the Seven Years War, and had no hesitation in endorsing the king’s actions. 5 He had read Machiavelli by 1804, 6 when he was still only 24, and in the next two years garnered plenty of evidence to endorse the precepts of both Frederick and Machiavelli. In December 1805, Napoleon defeated Austria and Russia at Austerlitz. Prussia had decided to remain neutral rather than join them against France. Its penalty for not acting preventively against Napoleon came in October 1806 on the battlefields of Jena and Auerstädt, when the Prussian army— and with it the Frederickian state—was destroyed. The king of Prussia, not least in Clausewitz’s eyes, had acted without prudence or virtu. Clausewitz therefore knew of the utility of preventive war not only from the experience of his father, an officer in the Prussian army in the Seven Years War, but also from his own profound sense of Prussia’s humiliation in 1806. His conclusion is contained in 2 Karl-Ernst Jeismann, Das Problem des Präventiv-Krieges im Europäischen Staatensystem mit besonderen Blick auf die Bismarckzeit (Munich, Germany, 1957), 23–5; see Hugo Grotius, The Rights of War and Peace (New York, 1901), b. II, ch. 1, paras. 2–5, 75–7; b. III, ch. 22, paras. 2–4, 267–9. 3 Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, 1999; 2001 edn), 16–31; here 18. 4 I am grateful to Dr Jacqueline Newmyer for sharing her insights on Machiavelli and preventive war. 5 Carl von Clausewitz, On War (Princeton, NJ, 1976), ed. and tr. by Michael Howard and Peter Paret, b. III, ch. 6, 191. 6 Carl von Clausewitz, Strategie aus dem Jahr 1804 mit Zusätzen von 1808 und 1809, ed. by Eberhard Kessel (Hamburg, Germany, 1943; 1st edn 1937), 32, 41–2.

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book 8, on war plans, of On war: ‘Supposing that a minor state is in conflict with a much more powerful one and expects its position to grow weaker every year. If war is unavoidable should it not make the most of its opportunities before its position gets still worse? In short, it should attack’. And he went on: Again, suppose a small power is at war with a greater power, and that the future promises nothing that will influence either side’s decisions. If the political initiative lies with the smaller power, it should take the military offensive. Having had the nerve to assume an active role against a stronger adversary, it must do something defensive—in other words, attack the enemy unless he obliges it by attacking first. Waiting would be absurd, unless the smaller state had changed its political decision at the moment of executing its policy. 7

Pinning so much of the argument about preventive war in modern European history on two Prussians is not intended to cement the Sonderweg thesis in German history: it is neither here nor there in relation to preventive war whether there is a direct link from Frederick the Great to Hitler. Preventive war was a European norm as much as it was a German or Prussian one. The laws of war and international relations were more concerned with conduct within war, ius in bello, than with the decision to go to war, ius ad bellum. ‘International Law, as such, . . . does not consider the justice or injustice of war’, wrote the American lawyer, Amos Hershey, in 1906. ‘From the purely legal standpoint, all wars are equally just or unjust; or, properly speaking, they are neither just nor unjust’. 8 State sovereignty rested on the right to use war, and the behavior not least of Napoleon suggested that it was imprudent to assume that interstate relations were essentially pacific. The function of prevention as a causation for war was therefore neither here nor there in moral or legal terms. War, and by extension preventive war, underpinned the workings of the European international system as a whole in the eighteenth and nineteenth centuries. It was the basis of alliances, whose deterrent value rested on the readiness of their signatories to use war. In particular, it buttressed the notion of the balance of power, with its implication that war would be used preventively to restore that balance. What this meant after 1815, given Europe’s fear of a resurgent France, was that alliances would be formed to forestall the creation of a superpower. The purposes of the alliance might be defensive and pacific, but ultimately its strength rested on its readiness to launch preventive war to maintain the status quo. This set of assumptions did not mean that preventive war was a regular occurrence. War was recognized to be a risky business with uncertain outcomes. The power which launched a preventive war was likely to do so out of a sense of weakness or incipient vulnerability, not out of strength. It needed to achieve not only an initial military victory but also a quick peace. 9 It was after all a moot point as to how much Frederick the Great had gained from the Seven Years War despite his initial successes in 1756–7. By the war’s end in 1763, although Prussia had not 7

Clausewitz, On War, b. VIII, ch. 5, 601–2; see also 191 for his admiration of Frederick’s boldness. Amos Hershey, The International Law and Diplomacy of the Russo-Japanese War (New York, 1906), 67, quoted in Stephen C. Neff, War and the Law of Nations: A General History (Cambridge, 2005), 167. 9 Hermann Franke, Handbuch der neuzeitlichenWehrwissenschaften (4 vols., Berlin, 1936–8), I, 173. 8

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been crushed by Austria, its treasury was emptied, its manpower exhausted, and its economy struggling. The issue of Prussian particularism and European norms coalesce around the policies of Otto von Bismarck. Bismarck undoubtedly appreciated the utility of preventive war. He used its threat in 1863 to undermine Austria’s attempt to reform the German confederation and made a virtue of having done so in his memoirs. But he also realized that war was more consequential than it had been even in the eighteenth century. 10 He was not a warmonger: he was too mindful of its material and human costs. He was also careful to dissociate preventive war from its link with the military offensive. Prussia waged war offensively in 1866 and 1870, but Bismarck so managed its foreign policy that the onus of declaring war fell on Austria and France. By February 28, 1866, Bismarck saw war with Austria as the most likely consequence of the deterioration in Austro–Prussian relations, and he therefore needed to choose the best moment for it. He also knew that the mobilization of the Prussian army would be faster than that of the Austrian, and that he should exploit this military advantage: this was a preemptive, not a preventive, argument for war, a theme which will be picked up later. The crucial point for the moment is that in 1866 the military arguments for preemption did not usurp the political arguments revolving around prevention. Bismarck managed the crisis according to the needs of policy, not according to the requirements of the army. 11 Prussia’s campaign against Austria was over in seven weeks and ended in a crushing victory. In the following year, 1867, the military architect of the triumph, Helmuth von Moltke, the chief of the general staff, anticipated that war with France would be unavoidable within five years, but also warned that the military balance would become progressively less favorable to Prussia as Napoleon III’s army reforms took hold. He therefore advocated war sooner rather than later. But Bismarck did not declare war with France when the opportunity arose over Luxemburg in 1867. He would later argue from this episode that a state should not go to war just to exploit the opportunity created by transient military strength. Preventive war was not warranted because it was likely in the future and because it was winnable now. Wars were fought because of vital national interests. 12 Embedded in Bismarck’s thinking was the idea that war was an existential act, fought because there was no other option. After its victory over France in 1871, in a war almost as rapid as that against Austria, united Germany saw its position as comparable with that of Prussia in 1756, an analogy it used right up until 1945. Geographically exposed, with long land frontiers to east and west, and sandwiched between Russia and France, with the latter a seemingly inveterate enemy, it was conscious of its vulnerabilities. But equally it would have no cause to go to war if it were stronger than its neighbors. Bismarck therefore saw preventive war after 1871 as an instrument of his foreign 10 Jeismann, Das Problem des Präventiv-Krieges, 37, 42–3; Walter Kloster, Der deutsche Generalstab und der Präventivkriegs-Gedanke (Stuttgart, Germany, 1932), 5. 11 Jeismann, Das Problem des Präventiv-Krieges, 49. 12 Ibid. 63 and 67–9.

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policy, to be threatened if France got stronger, but precisely so as to avoid the much greater risks of actual war. 13 The so-called ‘war in sight’ crisis of 1875 illustrates the policy exactly. France was short of horses for its cavalry and ordered them from Hungary. They had to be imported via Germany, and Bismarck, fearful that France was building up its armed forces with a view to a war to revenge the humiliation of l870–1, banned the movement of the horses. France responded by increasing the establishment of its infantry regiments from three battalions to four. Europe took Bismarck’s threat of preventive war seriously—and seemed right to do so given a track record which included the war with Denmark in 1864 as well as the wars of 1866 and 1870. But Bismarck did not: he was using the press to magnify the threat and so increase his own diplomatic leverage. 14 Bismarck also recognized the changes in the character of war. Preemptive military action had delivered victories in 1866 and 1870 because the wars were short. The first battles had proved decisive. But the analogy between the new German Reich and Frederick the Great’s Prussia was helpful in that future wars were likely to resemble the Seven Years War, at least in their duration, more than either of those fought in 1866 and 1870. The economic power of industrialized states meant greater staying power with the result that wars would develop their own political momentum. Preemptive military action was not likely to secure a victory sufficiently quick to deliver the intended political outcome. 15 The political arguments for preventive war were vitiated by industrialization, but industrialization also enhanced the arguments for preemptive military action. At one level this was a direct corollary of the expectation that the wars of the future would be long: preemption was the way to avoid a long war. The demand for a short war to forestall a long one was a key assumption in the pre-1914 plans of the German general staff. 16 At another level it was an even more direct consequence of industrialization, encapsulated in the idea of war by railway timetable. By 1914, thanks to the network of railway communications, mass armies could be mobilized and deployed much faster than in previous wars. Preemption was an idea that grew from the operational level of war; it was a military concept, whereas preventive war was a political one. Preemption was not necessarily linked to war’s causation, but was part and parcel of war’s conduct. Linked to stratagem, ruse, and deception, it embodied the core strategic principle of surprise in war. Seizing the initiative and using speed in maneuver were axioms derived from Napoleonic warfare. They also smacked of Frederickian common sense: taking the war to the enemy by attacking meant that the war would be fought and its burdens sustained on his territory, not on one’s own. In 1907, General J. von Verdy du Vernois, in his multivolume Studien über den Krieg, devoted a section of 162 pages to what he called ‘Strategischer Überfall’, 13

Jeismann, Das Problem des Präventiv-Krieges, 87–92. See Bismarck’s letter to the Kaiser, August 13, 1875, in Kloster, Der deutsche Generalstab, 9–10. 15 Jeismann, Das Problem des Präventiv-Krieges, 99. 16 Hew Strachan, The First World War (Oxford, 2001), I, 1005–14; Stig Förster, ‘Die deutsche Generalstab und die Illusion des kurzen Krieges, 1871–1914’, Militärgeschichtliche Mitteilungen, 54 (1995), 61–95. 14

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or strategic surprise: preemption by another name. He began with perspectives from Clausewitz, but not book 8, chapter 5 of On War, which contained the discussion of preventive war. Instead, as was common among German officers of his generation, he concentrated on the preceding books, using them to show operational principles, especially how to catch the enemy unawares by attacking him in his winter quarters, and emphasizing the principle of speed over that of concentration in order to achieve surprise. ‘Preemption [the German word he used was ‘Überfall’] originates in an offensive, which catches the enemy in a position in which he cannot counter the attack with organized resistance.’ 17 Frederick the Great’s seizure of Silesia in 1740–1 provided an extended case study, and he also used Caesar’s conduct of the civil war in 50–49 and Turenne’s campaign in the Rhineland in 1674. The problem that the general staffs of Europe confronted in the twenty-five years before World War I was that surprise in the opening stages of a campaign would be inherently difficult to achieve given great power tensions and the degree of preparation for war in peacetime. As Colmar von der Goltz concluded in 1895, speed of mobilization was the only way to regain surprise: ‘It makes surprise possible, and only discloses the object which we are pursuing when it is too late for the enemy to make up the start we have gained’. 18 What had been an operational idea in origin—a perfectly proper area of military competence—had now acquired directly political connotations: preemption was bleeding into prevention. But again this was not just a German problem. Britain confronted the preemption/prevention issue at sea. The First Sea Lord between 1904 and 1909, Jackie Fisher, was regularly quoted as saying that he would launch a surprise and preemptive attack on the German navy in harbor, as Nelson had done against the Danish fleet in Copenhagen in 1801. Such threats fed the paranoia of the German navy, even if the British cabinet was unlikely to condone a preventive war. 19 Jurists before World War I may not have debated the legality of preventive war but they were exercised by the legality of a surprise attack, using preemption. 20 In 1904 itself the Japanese navy initiated war with Russia in Manchuria with a preemptive attack which prompted the Russians to claim that the Japanese had breached international law. 21 E. B. Hamley’s The Operations of War, first published in 1866 but revised and updated as a Staff College text until after World War I, commented of the Japanese action and the morality of preventive war: In modern times wars have been prepared for beforehand in detail by one side, if not both, so as to save every possible minute at the outset; armies and armaments have been adjusted to work on a hair-trigger, so that plans of campaign could be put in operation by a single 17

J. Verdy du Vernois, Studien über den Krieg (3 vols., Berlin, 1892–1902), 3, Part 2, 26. Colmar von der Goltz, The Conduct of War (Berlin, 1895; London 1st English edn, 1897; 1917), 116. 19 Arthur Marder (ed.), Fear God and Dread Nought: The Correspondence of Admiral of the Fleet Lord Fisher of Kilverstone (3 vols., London, 1952–9), vol. 2, 51, 55. 20 Neff, War and the Law of Nations, 182–5. 21 Nagao Ariga, La guerre russo-japonaise au point de vue continental et le droit international d’ après les documents officials du grand état-major japonais (Paris, 1908), 23–9. 18

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word. For this reason the doctrine of ‘preventive war’ opens up such grave prospects to all who desire that wars should be less frequent that it will be as well to examine the theory more fully. 22

British concerns were recognized in Article 1 of the third agreement of the second Hague Convention of October 18, 1907, which stated that ‘hostilities must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war’. 23 In saying that the issues of preemption and preventive war were problems common to all Europe, it is important not to throw the baby out with the bathwater. The four crises in which they loomed most large up to and including the outbreak of World War I—those of 1886–7, 1905, 1911, and 1914 itself—all involved Germany, and went to the heart of civil–military relations in the Kaiserreich. They were therefore not just conceptual in nature, but also institutional. Would the military case for preemption in war be held in check by the politicians’ recognition that preventive war now had deterrent value only? The first of these crises, that of 1886–7, marked the emergence of a clear polarization between some soldiers and the Kaiser’s senior political adviser, the chancellor. In 1875, Moltke himself had recognized the awfulness of war, and therefore worked with the grain of Bismarck’s policy. In the years preceding 1886, Moltke assumed that, in the event of a two-front war, Germany would defend against France to the west and would attack east against Russia. Germany’s ability to fight offensively in the east itself rested on two presumptions: that it could mount a successful defense against France and that Russia was relatively weak. However, as Russia’s military situation improved, so did calls within the German general staff for a preventive war against Russia before Germany’s overall security within Europe was jeopardized. Two developments affected these calculations. The first was the rise of the nationalist minister of war, General Georges Boulanger, in France in 1886. His apparent popularity suggested that France would initiate a war of revenge and therefore that Germany should act first while it still could. Like Frederick the Great’s preventive war of 1756, such a conflict would be necessary and therefore still defensive, but Bismarck also combined deterrence with defense. The threat of preventive war might avert war and the buildup of Germany’s offensive capabilities would add to its credibility, although the purpose would remain defensive. Bismarck’s own determination to avoid actual hostilities led to the creation of the Triple Alliance, involving Austria-Hungary and Italy, and particularly to the furtherance of Austro–German relations. The increase in the Russian threat in 1887, which resulted in the general staff ’s call for preemptive attack, contained a political as well as a military dimension. War with Russia, or its danger, was what gave vigor to the Austro–German alliance. The German military attaché in Vienna encouraged the belief that Russia was challenging Austria-Hungary’s position in the Balkans. Now the conduct of war 22

E. B. Hamley, The Operations of War Explained and Illustrated (7th edn, Edinburgh, 1922), 360. Waldemar Erfurth, Surprise, tr. by Stefan T. Possony and Daniel Vilfrong (1943; reprinted in Roots of Strategy, 3, Harrisburg, PA, 1991), 402. 23

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itself was having political consequences, and the role of policy was to create the best possible conditions for war. Alfred von Waldersee, who succeeded Moltke as chief of the general staff in 1887, was the key exponent of this point of view, advocating preventive war against France in 1886 and Russia in 1887. In the New Year of 1888, he wrote a memorandum: ‘The great question is this: should we begin the war which seems unavoidable while the chances for us are still better, or should we wait until the advantage passes to our enemies, in the hope that somehow something will happen which spares us the war? I am convinced that the first is right.’ The crisis dissipated as Germany’s apparent military opportunity faded, and in 1891, Waldersee was replaced as chief of the general staff by Alfred von Schlieffen. 24 Schlieffen’s attitude to preventive war has generated much debate. He was clear that Frederick the Great was not the aggressor in 1756, even if he had initiated hostilities, and he therefore recognized the distinction between the military case for preemption and the political decision to go to war. 25 In 1867, he had reckoned war with France was necessary and the moment was right, but that it could be avoided for a long time: in other words, he did not see that a military opportunity constituted a political necessity. That seems also to have been his view in 1905, during the first Moroccan crisis. Russia had been allied with France since 1891/4, and thus the menace for Germany of a two-front war was real enough. But with Russia doubly weakened, first by defeat at the hands of Japan in Manchuria and then by revolution at home, Germany confronted only negligible dangers to the east in 1905. Therefore it could strike west with a comparatively free hand if it chose to use its dispute with France over the latter’s policy in Morocco as the opportunity to do so. Schlieffen once again compared Germany’s position with that of Prussia in 1756: it was faced by an alliance which threatened more than one frontier but it enjoyed a moment which looked comparatively more favorable than might be the case in the future. Germany did not, however, see the diplomatic situation as so desperate that war was the only way out. One solution was to pursue an alliance with Russia, which as a conservative autocracy should have found imperial Germany a far more logical partner than republican France. A war in which Britain was persuaded to join France would be a far worse outcome. 26 Schlieffen retired at the end of 1905, and some have argued that he was removed precisely because he had argued in favor of preventive war during the crisis, but there is no evidence for this. His successor, Helmuth von Moltke the younger, the nephew of the chief of the general staff in the wars of unification, held office in the second great crisis over Morocco in the decade before World War I, but the evidence for saying that he used the opportunity to call for preventive war in 1911 is even more elusive than that for Schlieffen in 1905. What Moltke did do, however, was resuscitate the military dimensions of the Austro–German alliance which his 24

Jeismann, Das Problem des Präventiv-Krieges, 141–4. Albert Moritz, Das Problem des Präventiv-Krieges in der deutschen Politik während der ersten Marokkokrise (Bonn, Germany, 1974), 216. 26 Ibid., passim; Kloster, Der deutsche Generalstab, 40–4; but see Ivo Nikolai Lambi, The Navy and German Power Politics (Boston, MA, 1984), 242–4, 259–60. 25

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predecessor had allowed to wither, and which in due course exposed Germany to a much more forceful exponent of preventive war. Franz Conrad von Hötzendorf, Moltke’s equivalent in Vienna and a social Darwinist, argued that states were either rising or declining, and that they fought each other as they struggled to survive. ‘Policy is nothing other than one form of the great struggle for existence. What follows is the need to recognise an unavoidable enemy at the right time and to defend against him at the right time.’ The argument was particularly powerful for policymaking in Austria-Hungary, a multinational empire on perpetual notice as to its future in an era of national self-determination. Conrad, therefore, concluded that war should be undertaken preventively: ‘policy consists precisely of applying war as method’. 27 In the years before 1908, the preventive war that Conrad wanted to wage was against Germany’s and Austria-Hungary’s nominal partner in the Triple Alliance, Italy. 28 This was the power which Austria-Hungary had fought most recently with any success. Then, in 1908, Austria-Hungary annexed Bosnia-Hercegovina, still nominally part of the Ottoman empire. Austria-Hungary thought it had secured Russia’s acquiescence in this démarche, but instead provoked such a pan-Slav outburst that the Tsar and his advisers changed tack, leaving Vienna pursuing a Balkan policy which was deeply unpopular within Europe. It turned to Germany, whose support it would need if it fought Russia. Serbia was Austria-Hungary’s most active and vocal antagonist among the Balkan powers, challenging Habsburg authority over the south Slavs, and exploiting Russia’s sense of humiliation to foment great power rivalry in the Balkans. Conrad sharpened his ideas about preventive war by calling for war against Serbia repeatedly—twenty times according to some calculations—before 1914. As the Bosnian crisis ran on into 1909, Conrad and Moltke exchanged views as to joint operations in the event of a European war. The Serbs climbed down, as did Russia. The threat of preventive war had worked, and that suited the AustroHungarian foreign minister, Aerenthal. He used Conrad’s advocacy of preventive war only as a political tool. ‘Today’, he declared, ‘one does not fight preventive wars’. As he had explained in 1907, in advance of the Bosnian crisis: ‘Such a course would not only go against Austrian traditions, but would also not be understood in our time when wars must be waged with people’s armies: the indispensable moral cooperation between army and population would not be present’. 29 Conrad was removed from office precisely because he believed in the utility of preventive war. 30 27 Kurt Peball (ed.), Conrad von Hötzendorf. Private Aufzeichnungen: erste Veröffentlichungen aus den Papieren des k.u.k. Generalstabs-Chefs (Wien, 1977), 128, 148; see also 152, where Conrad puts this argument in the context of the July 1914 crisis. 28 August von Urbañski, ‘Conrad von Hötzendorf und der Präventiv-Krieg gegen Italien’, Berliner Monatshefte für internationalen Aufklärung. Die Kriegsschuldfrage, 8 (1930), 248–58. 29 David Hermann, The Arming of Europe and the Making of the First World War (Princeton, NJ, 1996), 110, 125. 30 Gunther Kronenbitter, ‘Krieg im Frieden’. Die Führung der k.u.k. Armee und die Grossmachtpolitik Österreich-Ungarns 1906–1914 (Munich, Germany, 2003), 137–8.

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In December 1912, the Serbs again challenged Germany and Austria-Hungary by their success in the first Balkan War against Ottoman Turkey. They raised the possibility of a south Slav state outside the Habsburg empire rather than within it. Austria-Hungary, as in the Bosnian crisis, mobilized. Conrad, who had been sacked for his bellicosity, was recalled, and Germany warned Britain against interfering in European affairs. Britain responded by saying that it would not accept a French defeat if a war between Austria-Hungary and Russia led Germany (as Austria’s ally) to attack France (as Russia’s). Germany was already smarting from its humiliation at the hands of Britain and France in the 1911 Moroccan crisis, a hurt felt particularly strongly by Moltke. On December 8, 1912, the Kaiser convened a council attended by his senior military advisers, at which Moltke said that war was inevitable and the sooner it came the better. 31 Some historians—Fritz Fischer, Adolf Gasser, and David Hermann among them— have concluded that, when war did break out in Europe eighteen months later, on the basis of a crisis whose constellation was very similar to that of December 1912, it was a preventive war launched by Germany and Austria-Hungary. Certainly, as in 1887, preventive war thinking was present in the general staffs of both countries. 32 In addition, the focus on mobilization and deployment plans did put great stress on the operational values of preemption—both for Germany and its advance through Belgium and into France and for AustriaHungary and its invasion of Serbia. Nonetheless the key issue in the crisis of July 1914 is whether preventive-war thinking was embraced at the political level. Berchtold, Aerenthal’s successor as foreign minister in Vienna, did not restrain Conrad. Together with others in the Austro-Hungarian foreign ministry, Berchtold thought the Habsburg empire should use the opportunity created by the assassination in Sarajevo of the Austrian heir apparent, Archduke Franz Ferdinand, to crush Serbia and so restore its position in the Balkans: this would be a preventive war to forestall the decline of the Austro-Hungarian empire. However, the German chancellor, Theodor von Bethmann-Hollweg, was not thinking in these terms. He saw that future war would be apocalyptic, long, and politically and socially disastrous. If preventive war had any place in his thinking, it was the threat of preventive war to force the Entente of France, Russia, and Britain into crisis. Moreover, Moltke’s own thinking on preventive war, however forcefully expressed on December 8, 1912, played no role in July 1914, not least as he was on leave for most of the month. By the time he returned to Berlin, on July 25, 1914, what mattered to him was preemption: if war was coming, he wanted to secure the initial victories. Hans von Haeften reckoned that the nervous tension of late July shattered the already fragile health of Moltke, caught between the realization of how awful a European war would be, not least for Germany, and the need not 31 John Röhl, ‘An der Schwelle zum Weltkrieg. Eine Dokumentation über den “Kriegsrat” vom Dezember 1912’, Militärgeschichtliche Mitteilungen, 1 (1977), no. 21, 100; see also Röhl, ‘Admiral von Müller and the Approach of War, 1911–14’, Historical Journal, 12 (1969), 651–73. 32 Theobald von Schäfer, ‘Wollte Generaloberst von Moltke den Präventivkrieg?’, Die Kriegsschuldfrage, 5 (1927), 543–60; Hermann Lutz, ‘Moltke und der Präventivkrieg’, ibid. 5 (1927), 1107–20.

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to mobilize too late. The war planning of the German army before 1914 was preemptive, not preventive. After World War I, the Kellogg-Briand Pact (or the Paris Peace Pact) of 1928 renounced the use of war as an instrument of national policy, thus breaking with the presumption that the decision to resort to war was implicit in national sovereignty. It did not distinguish between wars of aggression and defense as such, but the fact that it was used to justify the standing of the war crimes trials at Nuremberg after World War II made the point an important one. 33 Germany was one of fifteen signatories to the Kellogg-Briand Pact, which it was deemed to have breached by waging a war of aggression. During the 1928 negotiations, Kellogg, the US Secretary of State, had himself recognized the distinction between attack and defense, by privileging the latter. Self-defense, he said, ‘is inherent in every sovereign state and is implicitly in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense.’ 34 But did that principle extend to preventive war? Germany presented its own initiation of hostilities against Poland on September 1, 1939 as preemptive, ‘in defense against Polish attacks’. 35 However false Germany’s case, Hitler had exposed an important point of principle. If the Kellogg-Briand pact, at least by implication, permitted a state the right to go to war for defensive purposes, did that also permit it to attack first if it itself was subject to the threat of imminent attack? Paradoxically an attempt to outlaw all war had the effect of providing a possible legal and moral justification for preventive war. 36 That a ban on the use of war might become the basis for an argument for preventive action on the grounds of self-defense (however spurious) was not obvious during the 1930s or even in 1939 itself (so transparent were Germany’s true intentions). The contention that the next war would be long—a reasonable conclusion in light of the experience of World War I—reduced some of the preemptive pressures on foreign policy. That is not to say that preemption was not present in military thought. In particular, military writers of the early 1920s— both liberal, like Basil Liddell Hart, and fascist, like Giulio Douhet—argued that the bomber should be used to inflict an initial and disabling strike to disrupt the mobilization of ground forces and so avoid the prolonged stalemate of trench warfare. Even their advocacy of air attack on the civilian population reflected the same sort of logic. A sudden and devastating blow on urban centers derived its ethical justification from the argument that it would make a future war shorter and 33 Donald A. Wells (ed.), An Encyclopedia of War and Ethics (Westport, CT, 1996), 381–2; Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (London, 1984), 309; James Turner Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton, NJ, 1981), 30. 34 American note of June 23, 1928, quoted by Neff, War and the Law of Nations, 304. 35 Militärgeschichtliches Forschungsamt, Germany and the Second World War (10 vols, Oxford, 1990–), I, 715. 36 Bruno Coppieters and Boris Kashnikov, ‘Right Intentions’, in Bruno Coppieters and Nick Fotion (eds), Moral Constraints on War: Principles and Cases (Lanham, MD, 2002), 74.

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more rapid through the rapid collapse of civilian morale. Despite these doctrinal pressures preemption was not a factor in going to war for any of the western powers in 1939, as the ‘phoney war’ of 1939–40 demonstrated. Preventive-war thinking was, however, implicit in the ideological clash between fascism and Bolshevism. Both ideologies cleaved to the view that war was inevitable, fascism not just because of its clash with communism, but also because of its emphasis on struggle per se, and Bolshevism not just with fascism but more probably with capitalism. The question therefore was not whether but when. Aleksandr Svechin in his book on strategy published in 1927 wrote: Preventive wars are wars provoked by one state because it fears that the growing strength of its neighbor will threaten it in a future war which would have to be conducted under more adverse conditions than those of the present. Thus a preventive war is characterised by a situation of political defense and strategic offense. The growing strength of the workers’ movement, and in particular, the Union of the Soviet Socialist Republics, could easily make the bourgeoisie consider a preventive war. 37

On the other side of the divide, Germany’s Handbuch der neuzeitlichen Wehrwissenschaften of 1936 defined preventive war in very similar terms, although predictably citing Frederick the Great in 1756 as an example, and asserting that ‘world history has decided he was right’. However, its conclusions were revealing. The risk of failure in preventive war or of international opprobrium could persuade statesmen to draw back, unless they were ‘gamblers’ or ‘possessed great heroic qualities as a leader, which can drive through the decision according to a deeper inner resolve’. 38 Hitler possessed both attributes, that of a gambler and that of Führer. He is alleged to have told his army commanders in December 1944, before the battle of the Ardennes, that ‘All successful wars, meine Herren, become preventive wars’. 39 Waldemar Erfurth, a Wehrmacht general, had written in 1938: ‘War should be planned like an ambush. On principle the first attacks of the war should only be launched when and if the opponent does not expect it, thinking the peace is not menaced by any military design on the part of the neighbor’. He went on: Moral considerations have validity only in civilian life and should not interfere with preparations for war. There are no international laws to prevent a stronger and more powerful people or a better-equipped army from attacking and defeating an inferior opponent. A sudden and unexpected attack is a decisive factor of victory and it will necessarily apply in any future war. The mortal blow must be struck before the enemy even knows that war is on. The enemy’s military power must be so severely hit that he will be unable to retaliate. 40

37 38

Aleksandr A. Svechin, Strategy (first published, 1927; Minneapolis, MN, 1992), 99. Hermann Franke, Handbuch der neuzeitlichen Wehrwissenschaften (4 vols, Berlin, 1936–8), 1,

173. 39

Jeismann, Problem, 154.

40

Erfurth, Surprise, 415.

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After World War II, for all the achievements of the German army between 1939 and 1941, Erfurth’s words—an argument for the military effects of preemption but applied in the political context of war’s causation—carried most resonance for advocates of air power, as Douhet and Liddell Hart had anticipated in the 1920s. Air attacks could be launched without the telltale signs of military mobilization and they would be the opening and disabling phase of the 1967 Arab–Israeli War. The advent of nuclear weapons, in this respect as in others, built on the inheritance of strategic bombing. Preemption entered the vocabulary of deterrence, and yet deterrence was about using the threat of war, not war itself, and so preemption also carried preventive implications. By 1954, the United States found its nuclear monopoly forfeit and its superiority ebbing, with the result that it feared that the Soviet Union could mount a disabling first strike. Some argued for preventive war—the use of a military superiority against an enemy with whom war was inevitable before that superiority disappeared. But the argument was couched in terms of preemption. American policy, as presented by John Foster Dulles, was to let the United States suffer a first strike, an approach which allowed its critics to exploit the memory of Pearl Harbor, magnified by the threat this time of massive civilian casualties. Dulles’s opponents said that the United States should itself deliver a preemptive first strike: In order to make atomic retaliation effective as a deterrent to aggression, we must decide now and prepare to strike first whenever we have positive evidence that an attack is being mounted against the United States. Such a policy does not contemplate a preventive war or a sneak attack. We would only strike if the prospective enemy did not cease preparing to attack us or our allies by a certain time. 41

But this process was reciprocal. Measures designed to embrace preemption were, to all intents and purposes, indistinguishable from measures designed to achieve surprise attack. The USSR was quite clear in 1955 that it was not embracing preventive war, by which it understood a war designed to forestall a remote possibility of enemy attack at some indefinite point in the future. The terrible destruction inflicted on the country by World War II deterred the Russians from the idea that preventive war had value. What it did adopt was preemption, to forestall an imminent enemy surprise attack and so ensure that the deployment of the main Soviet forces was not disrupted. Just as the events of 1941 were important to the United States, so they were important to the USSR. Stalin’s death in 1953 made it possible to acknowledge the extent of the Soviet defeat in 1941, the result of the German use of surprise. Nuclear weapons meant that the initial blow was much more likely to be decisive than it had been in World War II. 42 41 W. D. Puleston, The Influence of Force in Foreign Relations (New York, 1955), 128; see also Marc Trachtenberg, ‘Preventive War and US Foreign Policy’, in this volume; Joseph C. Harsch, ‘Präventivkrieg und militärisches Gleichgewicht: die Krise der amerikanischen Aussenpolitik seit der Genfer Konferenz’, Aussenpolitik, 5 (1954), 2 Halbjahr, Heft, 7–12, 697–712. 42 V. D. Sokolovsky, Military Strategy: Soviet Doctrine and Concepts (New York), 265; H. S. Dinerstein, War and the Soviet Union: Nuclear Weapons and the Revolution in Soviet Military and Political

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Nuclear deterrence theorists therefore confronted the problem with which commentators wrestled after the change in US doctrine following the attacks of September 11, 2001, that the distinction between prevention and preemption seemed ‘vague’. Moreover, their resolution of the problem has probably not helped in the long run. Preventive war remained what it had always been—‘the initiation of war, through an attack on the enemy, for fear of deterioration in the military balance between the two sides’. It was the option of a state in decline or one which perceived itself to be in decline. Preemption, on the other hand, was an attack in a war initiated by the enemy: ‘A pre-emptive attack is launched upon the enemy at the very commencement of the latter’s attack, or even in the course of its execution’. 43 It was improvised and desperate. The key presumption was that, in political terms, the enemy had begun the process, which was emphatically not what preemption, a more narrowly operational concept, had implied in the past. This reading of preemption was a direct consequence of nuclear weapons and nuclear deterrence. In the short term, the important point was that during the Cold War the pressures for preventive war or for the use of preemption were kept under political control, as in 1871–1914. But in the longer term, the elevation of preemption into a precipitant of war rather than a principle of military thought created considerable ambiguity and difficulty. The Soviet concern about surprise attack with nuclear weapons in the late 1950s was partly operational, in that its military consequences would be the disruption of the mobilization and deployment of the main ground forces. One response to this challenge was not preemption through a nuclear first strike but preemption through an enhanced ability to maneuver. By the late 1970s, NATO analysts were detecting an evolution in the Soviet army’s order of battle. It had created operational maneuver groups as forward detachments, to act preemptively in an operational sense by anticipating and forestalling enemy action, paralyzing their command and control systems, and seizing ‘advantageous positions in key terrain’. 44 In the early 1980s, the US army studied the operational maneuver group, reconsidered its own position on the use of conventional forces in Europe, and developed what NATO forces came to call maneuver warfare. In so doing they reverted to many old axioms of traditional strategy—the principles of surprise, seizing the initiative, economy of force, and mobility. The vocabulary of maneuver warfare said nothing about war’s causation and bore no relationship to ideas of preventive war. If the ideas of maneuver warfare had a political role, they were to prevent war. In The race to the swift: thoughts on twenty-first century Thinking (New York, [first published 1959] 1962), 12, 195–7, 202–3; David Holloway, The Soviet Union and the Arms Race (New Haven, CT, 1983), 57. 43

Yehoshafat Harkabi, Nuclear War and Nuclear Peace (Jerusalem, 1966), 43–5. David Glantz, The Soviet Conduct of Tactical Maneuver: Spearhead of the Offensive (London, 1991), 52–3, 58–9; Shimon Naveh, In Pursuit of Military Excellence: The Evolution of Operational Theory (London, 1997), 227. 44

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warfare, an influential text published in 1985, a retired British officer, Richard Simpkin, described the preemptive positioning of military forces into a position ready to fight and so to create leverage. Operational ideas about maneuver were therefore still linked to deterrence thinking, and the Cold War still provided a level of political containment for military action. Preemption was the deployment of military forces to threaten action, rather than to implement it. 45 In 1991, Robert Leonhard, an American officer, wrote of maneuver warfare, ‘the highest and purest application of maneuver theory is to preempt the enemy, that is to disarm or neutralize him before the fight’. And a few pages further on, he added, ‘Preemption is the first and best goal of maneuver—to win before the fight begins. Political pre-emption is the purest expression of maneuver at the strategic level.’ 46 But in 1991, the political context of the Cold War was being stripped away, and increasingly thinking about the operational level of war flourished in a policyfree zone. In 1994, Leonhard, in Fighting by minutes, a book on time and the art of war, defined preemption in different terms, as ‘tactics to the hastening of contact’, saying that the aim was to hit the enemy before he was prepared, and that whoever arrived first temporarily had the most combat power. Therefore, ‘preemption occurs when the friendly force moves with overmatching velocity against an enemy who cannot react in time’. 47 He developed these arguments in 1998, in a book on the principles of war for the information age. Alongside the offensive, maneuver and security, Leonhard listed surprise as a principle. Surprise, he explained, was when ‘one side preempts the other’. Preemption required speed and increased speed led to preemption. 48 Leonhard had put preemption back in its military box, but that box no longer had a clear position on the political shelf. Leonhard’s ideas were indicative of the extensive thinking on future war done by the US army in the 1990s, and which anticipated using technology as a force multiplier, deploying limited forces at speed across vast distances for limited ends. An operational principle—speed of maneuver for decisive effect, leading to total disintegration of the enemy—seemed to be validated by the first Iraq War of 1990–1. It became the basis for the ‘Army after next’ study of 1995–7, coordinated and led by Robert Scales. Scales argued that there were two types of limited wars, those of attrition, like Vietnam, which conceded the element of time to the enemy, and those of preemption. In a preemptive campaign the attack had the advantage of time, and—Scales believed—the United States did well when it controlled time. America, he argued, won wars that were short and lost those that were long. A strategic coup de main therefore denied the enemy the advantage of time, while also saving lives. For both Leonhard and Scales the model for this sort of thinking 45 Richard Simpkin, Race to the Swift: Thoughts on Twenty-First Century Warfare (London, 1985), 22, 141–3, 275, 280–88. 46 Robert Leonhard, The Art of Maneuver: Maneuver-Warfare Theory and Airland Battle (Novato, CA, 1991), 19, 56; italics in original. 47 Ibid., Fighting by Minutes: Time and the Art of War (Westport, CT, 1994), 152, 154. 48 Ibid., The Principles of War for the Information Age (Novato, CA, 1998), 11, 257.

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was Operation Just Cause in Panama in 1989, when the deployment of US forces was not complicated by the need to work with allies, and so could act unilaterally and speedily. 49 Preemption, a military principle, was therefore finding common ground with intervention, a political idea advocated by the Reagan administration in relation to Latin America in the 1980s. This was the true lesson from Vietnam, not the need for a military reform movement focused on war in Europe but the requirement for a better method of checking communism elsewhere in the world. George Shultz, the secretary of state, said in 1986 that a small number of challenges to the United States could add up to a major challenge. Therefore the time to act was ‘not when the threat is at our doorstep’, but when it ‘is still manageable and when [military power’s] prudent use can prevent the threat from growing’. The United States had used preventive war regularly since 1945 to forestall revolutionary change. In the 1950s and 1960s, it employed military power once every eighteen months on average to overthrow a government inimical to its interests. 50 But this existing predisposition in favor of preventive war was obscured until the 1990s by the wider context of the Cold War, by America’s endorsement of international law and multilateral institutions, themselves designed to curb preventive war, 51 and by the use of special forces and covert operations which ensured that the United States’ actions were largely overlooked. America’s interventions were not preemptive attacks but preventive war, as many of George Bush’s critics recognized by 2004. In that year, Gary Hart wrote that preemption now meant ‘a self-proclaimed right to initiate a military attack on a nation or set of actors perceived to represent a potential, but not imminent, threat.’ 52 Hart distinguished what he saw as a preventive war from preemptive attack. But even critics of the Bush strategy found it difficult to maintain the distinction. General Wesley Clark spoke about ‘the doctrine of pre-emption—taking action against others before they can harm’. 53 This was not what other soldiers, like Leonhard and Scales, admittedly of lower rank and with less experience at the civil–military interface, meant by preemption. What Clark’s statement revealed, as did Bush’s various articulations of his own policy, was that the vocabulary of foreign policy was being militarized. Preemptive attack was now doing duty for preventive war. In the past, preventive war was used by powers conscious of their own inferiority and vulnerability. Strong powers might have threatened preventive war, as Germany did after 1871 and as the 49

Robert H. Scales, Yellow Smoke: the Future of Land Warfare for America’s Military (Lanham, MD, 2003), 4, 34–5, 39, 41, and 91–2; Leonhard, Art of Maneuver, 276–7. 50 Michael T. Klare and Peter Kornbluh (eds), Low Intensity Warfare: How the USA Fights Wars without Declaring Them (London, 1989), 3–4, 55, 210. 51 Gary Hart, The Fourth Power: A Grand Strategy for the United States in the Twenty-First Century (Oxford, 2004), 112–15. 52 Ibid., 10; see also Colin Gray, The Sheriff: America’s Defense of the New World Order (Lexington, KY, 2004), 13. 53 Wesley K. Clark, Winning Modern Wars: Iraq, Terrorism and the American Empire (New York, 2003), 141.

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United States did in the Cold War, but only weak powers, like Prussia in 1756, Austria-Hungary in 1914 and (arguably) Japan in 1941, actually resorted to it. As Samuel Huntington declared in 1957, ‘Basic to a decision to engage in preventive war is the prediction that the potential military strength of one’s own state is declining in comparison with the military strength of the enemy’. 54 In 2001, the pattern was reversed: a strong power—indeed the world’s undisputed and only superpower—embraced a declaratory policy of using preventive war. That power was also a democracy, whose political controls were believed to imply a reluctance to use preventive war as an instrument of foreign policy. The vocabulary of preemption when applied to preventive war created misplaced expectations. Preemption is an operational concept and assumes surprise, speed, and maneuver; it rests on the achievement of quick victory. Statesmen like Bismarck eschewed preventive war, despite the military pressures of preemption, because they could not be sure what they were getting into. Statesmen who use preemption are in danger of creating false expectations for themselves about the use of military force, as Hitler found out. Short wars have an irritating habit of becoming long wars.

54 Quoted by Richard K. Betts, Surprise Attack: Lessons for Defensive Planning (Washington, DC, 1982), 146.

2 Preventive War and US Foreign Policy Marc Trachtenberg

On September 11, 2001, the United States suddenly found itself in what seemed to be a new world, a perplexing world, a world where the old guideposts no longer seemed adequate. How was the nation to deal with the enormous problems it now faced? Above all, what could it do to make sure that horrifying weapons—atomic weapons and biological weapons—would not be used against it? President George W. Bush and his top advisers soon came up with some basic answers to those very fundamental questions. A new national security policy was worked out and the main lines of that policy were by no means kept secret. US policy, the Bush administration declared quite openly, could no longer be based on the principle of deterrence. The nation could not ‘remain idle while dangers gather’. It had to identify the threat and destroy it ‘before it reaches our borders’. It had to ‘take whatever action [was] necessary’ to defend its freedom and its security. It had to be prepared to move ‘preemptively’—and, indeed, alone if necessary— against ‘rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends.’ It had to seize the initiative, ‘take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.’ ‘In the new world we have entered,’ the president declared, ‘the only path to peace and security is the path of action.’ 1 That new strategy of ‘preemption’, it is safe to say, did not go unnoticed, either in the United States or in the world as a whole. 2 President Bush, as one European 1 Bush West Point speech, June 1, 2002. http://www.whitehouse.gov/news/releases/2002/06/ 20020601-3.html; Cheney speech, August 26, 2002 http://www.whitehouse.gov/news/releases/2002/ 08/20020826.html; ‘The National Security Strategy of the United States of America’ (with Bush introduction), September 2002 http://www.whitehouse.gov/nsc/nss.pdf. 2 Many observers, especially in the academic world, strongly object to the use of the term ‘preemption’ in this context. That term, they believe, should apply only to cases where a country strikes in the belief it is about to be attacked; if no attack is viewed as imminent, they think the term ‘preventive war’ should be used. But not everyone takes that view. Paul Schroeder e.g. a strong critic of the Bush strategy, has no problem referring to it as a strategy of preemption. See his ‘Iraq: The Case against Preemptive War’, American Conservative, October 21, 2002. My own view is that political language is always changing, and that efforts to control that process—that is, to control how words are used— are themselves to be understood in political terms. Think e.g. of the way many people want illegal immigrants to be referred to as ‘undocumented’, and of the way those efforts are resisted by those of a different political bent. This sort of thing is perfectly normal, and as long as one understands

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commentator put it, had in fact ‘stunned the international community’ by declaring ‘that taking preemptive military action was an acceptable option for coping with the new threat environment characterized by transnational terrorism and the proliferation of weapons of mass destruction.’ 3 The new policy, it was said, marked a total break with American tradition. In the past, the argument ran, the United States had had a more cautious, more purely defensive policy—a policy whose watchwords during the Cold War were ‘containment’ and ‘deterrence’, a policy marked by respect for legal norms and for the sovereign rights of other countries. America had traditionally refrained from the use of force until it, or one of its allies, had been attacked. But now the government had broken with that tradition and had opted for a far more active—or, as the critics would put it, a far more aggressive—policy. 4 Now the idea was that the country could not ‘let our enemies strike first’—that America, if the danger was great enough, might have to move ‘preemptively’. The administration, of course, defended its new policy, but it did not really take issue with the basic historical claim here: that the Bush policy was radically different from the sort of policy the country had pursued in the past. To be sure, from time to time certain historical precedents were cited, and Secretary of Defense Donald Rumsfeld occasionally pointed out that throughout history countries had moved ‘preemptively’ when they saw a threat developing—that is, that there was nothing new to the idea of anticipatory self-defense. 5 But basically the administration did not dispute the idea that policy had shifted dramatically. It instead took the line that new circumstances, the combined threat of terrorism, and ‘weapons of mass destruction’, meant that the country had to break with tradition—that it could not just sit on its hands and wait for its enemies to attack, but instead had to go on the offensive and do whatever was necessary to neutralize the threat. Historical arguments have thus played a certain role in these very fundamental political debates, and this suggests that historical analysis can have a certain bearing on the way we think about these basic issues of policy. For if it turns out what is going on, there is no point in getting too upset about issues of terminology. For an historian’s analysis of the shifting and at times rather problematic relationship between the two concepts, see Hew Strachan, ‘Preemption and Prevention in Historical Perspective’, in this volume. 3 Karl-Heinz Kamp, ‘Preemption: Far from Forsaken’, Bulletin of the Atomic Scientists, March–April 2005, p. 26. The author was security policy coordinator at the Konrad Adenauer Foundation in Berlin. 4 Note the title, for example, of one of Arthur Schlesinger’s writings on the subject: ‘Seeking Out Monsters: By Committing Himself to Preventive War, George Bush Has Overturned Two Centuries of U.S. Thinking on Global Diplomacy’, Guardian (London), October 19, 2004. See also his article ‘The Immorality of Preemptive War’, New Perspectives Quarterly 19, no. 4 (Fall 2002), and his book War and the American Presidency (New York: Norton, 2004), pp. 21–3. But this sort of argument is by no means limited to politically active writers like Schlesinger. It is quite common in the more academic literature as well. See, e.g. Robert Pape, ‘Soft Balancing against the United States’, International Security, 30, no. 1 (Summer 2005), esp. pp. 7, 25–6, 28. 5 Charles Lambroschini and Alexandrine Bouilhet, Donald Rumsfeld: ‘La Guerre Préventif est aussi vieille que l’Histoire’, Le Figaro, February 10, 2003; and Rumsfeld interview with Bob Woodward, October 23, 2003 http://www.defenselink.mil/transcripts/2004/tr20040419-secdef1362.html.

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that historically US policy has been considerably more active—more willing to use force ‘preemptively’—than people have tended to assume, then that might lead us to look at the Bush policy in a rather different light. A degree of historical continuity always suggests that what is going on has to be understood, at least to some extent, in ‘structural’ terms, and not just in terms of the particular personalities of those who happen to be in power at the time. And indeed international relations theorists have argued that the basic structure of the international political system leads states to act ‘preemptively’—that is, that it leads them to adopt aggressive policies for essentially defensive purposes. That claim, if valid, should certainly affect the way we think about these questions of policy, and an historical analysis might throw some light on this very basic theoretical issue. So I would like to bring an historian’s perspective to bear on this problem. I would like to get at the issue of how anomalous the Bush strategy is—of the degree to which the Bush administration has really broken with American tradition in this area—by looking at policies pursued by other American governments, and in particular by looking at how the Truman, Eisenhower, Kennedy, and even Clinton administrations dealt with this sort of problem in earlier phases of the atomic age, but also by looking with some care at the policy the Roosevelt administration pursued in the period before Pearl Harbor.

2.1. THE EARLY COLD WAR Let me begin with Truman and Eisenhower. What role did ‘preventive-war’ thinking—that is, the idea that the United States might have to move against its principal adversary before the threat posed by the enemy became too great—play in American policy in the late 1940s and 1950s? I once spent some time looking into this issue and was amazed by what I found. I got involved with this question because I saw political scientists arguing that the prospect of a shift in the strategic balance could have an enormous impact on state behavior—and arguing in particular that when a country sees itself losing its strategic edge, it might well decide to bring matters to a head with its enemies and take action before it was too late. I understood the logic of the argument, but I just did not think that in practice this sort of thing was very important. I assumed that during the Cold War, for example, only the lunatic fringe took those preventivewar arguments seriously. Responsible leaders, it seemed to me at that time, would never have come close to thinking in those terms. And I thought that by studying the issue of the shifting strategic balance during the early nuclear age—and the balance was changing quite dramatically from year to year at that time—I could get a handle on those theoretical issues. I thought I would be able to show that the political scientists were wrong and that their whole way of looking at things was misguided. But after studying the evidence I was forced to admit that I was the one who had been wrong. It turned out that when you look at the evidence from this period, you

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find preventive-war arguments all over the place. A whole series of major figures were very worried about what would happen if matters were allowed to drift and nothing done to prevent the USSR from building a nuclear force. They wanted the United States to do what it had to in order to prevent the Soviets from building such a force. They wanted America to bring matters to a head with the Soviet Union before it was too late. To me, it was just astonishing how many people were thinking along those lines—scientists, mathematicians, and philosophers (like Leo Szilard, John von Neumann, and Bertrand Russell), leading journalists and major political figures (including a number of senators), and, above all, a whole series of high-ranking military (and especially Air Force) officers. Even distinguished diplomats like George Kennan and Charles Bohlen seemed to think that it would not have been too bad if war with the USSR had broken out before that country had developed a large nuclear force. And not just Americans: a number of leading European political figures were also thinking along these lines. Winston Churchill, for example, argued, repeatedly in the late 1940s, that matters needed to be brought to a head with the Soviets before it was too late, while the United States still enjoyed a nuclear monopoly. And Charles de Gaulle told an American journalist in 1954 that the ‘United States made a great mistake by not pursuing a policy of war’ when it still had a ‘definite atomic lead’. Europe, he thought, would have supported America in such a policy: ‘When you took your stand in Korea the free world was with you and was ready to be led into war. But you cannot expect other nations to adopt a real self-sacrificing military attitude if you do not pursue a policy of war.’ But it was too late, he said regretfully, for anything like that now. 6 So preventive-war thinking was surprisingly widespread in the early nuclear age, the period from mid-1945 through to late 1954. What, however, is to be made of all this? Was it all just talk, or did this kind of thinking have any real effect on US policy? Were ideas of this sort taken seriously in high policymaking circles? Or was it the case that only isolated individuals were attracted to this kind of policy? What role, if any, did this way of looking at things play during the Truman period? It turns out that the preventive-war philosophy, in terms of its effect on policy, was not very important in the late 1940s. To be sure, President Truman himself fantasized about starting a war in 1946: ‘Get plenty of Atomic Bombs on hand— drop one on Stalin, put the UN to work and eventually set up a free world.’ 7 But 6

See Marc Trachtenberg, ‘A “Wasting Asset”: American Strategy and the Shifting Nuclear Balance, 1949–1954’, in Marc Trachtenberg, History and Strategy (Princeton, NJ: Princeton University Press, 1991), esp. pp. 103–7 and p. 118 n. 62. For de Gaulle, see C. L. Sulzberger, The Last of the Giants (New York: Macmillan, 1970), p. 52. See also Russell D. Buhite and William C. Hamel, ‘War for Peace: The Question of an American Preventive War against the Soviet Union, 1945–1955’, Diplomatic History 14, no. 3 (Summer 1990), and Steven Casey, ‘Selling NSC-68: The Truman Administration, Public Opinion, and the Politics of Mobilization, 1950–51’, Diplomatic History 29, no. 4 (September 2005), pp. 663–4, 675–6, and 687–9. 7 Truman desk note of June 1946, in Strictly Personal and Confidential: The Letters Harry Truman Never Mailed, ed. Monte Poen (Boston, MA: Little Brown, 1982), p. 31. This was not the only time Truman fantasized about starting, or threatening to start, a nuclear war as a way of settling things with the Communists. See also his journal entries from 1952 published in Barton Bernstein, ‘Truman’s Secret Thoughts on Ending the Korean War’, Foreign Service Journal, November 1980, pp. 33 and 44.

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daydreams of that sort (if you can call them that) did not count for much, and it was only after 1949—that is, after the Soviets had broken the American nuclear monopoly and had begun to build an atomic arsenal of their own, and after Dean Acheson had taken office as secretary of state—that preventive-war thinking came into play in a major way. People tend to assume that US policy during the Cold War was from the very start based on the idea of containment. But it is important to understand that Acheson’s goal was rollback—that he did not just want to stabilize the situation as it was. The aim was to bring about a ‘retraction’ of Soviet power by creating ‘situations of strength’. The goal, according to one very well-known document from that period, NSC 68, was to ‘check and to roll back the Kremlin’s drive for world domination’. The ‘policy of gradual and calculated coercion’ that NSC 68 explicitly called for would, it was understood, be possible only if US power were first built up to quite extraordinary levels, and in fact, beginning in late 1950, the United States began to rearm on an absolutely massive scale. The idea, according to Paul Nitze, then-head of the State Department’s Policy Planning Staff and the main author of that document, was to ‘lay the basis’ for a policy of ‘taking increased risks of general war’ with the USSR ‘while her stockpile of atomic weapons was still small.’ 8 And Nitze, it should be noted, was very close to Acheson at that time. By late 1952, the rearmament program had achieved its goal. By that point, the United States had very much the upper hand in strategic terms. But the US government as a whole, it seemed, was not willing to take advantage of that situation and go on the offensive. Nitze complained, in fact, at the very end of the Truman period, that the United States was becoming ‘a sort of hedge-hog, unattractive to attack, but basically not very worrisome’, and that the goals laid out in documents like NSC 68 were not being taken ‘sufficiently seriously as to warrant doing what is necessary to give us some chance of seeing these objectives attained.’ 9 And the coming to power of the Republicans did not make much of a difference, from the point of view of people like Nitze and Acheson. By mid-1953, just a few months after Eisenhower took office, Acheson was already complaining also about the new administration’s ‘weakness’—about its failure to take advantage of the fact that, thanks to its predecessor’s policies, it was now in a position to press the Soviets hard. 10 But Acheson, now an outsider, scarcely knew what the new administration was thinking. In their first two years in office, Eisenhower and his associates were in fact strongly tempted to pursue a policy that no one would ever call ‘weak’. They were very much concerned with the problem of the growing Soviet nuclear capability. Eisenhower himself wondered whether ‘our duty to future generations did not 8

See Trachtenberg, History and Strategy, pp. 109–11, p. 112 n. 41. Nitze to Acheson, January 12, 1953, in U.S. Department of State, Foreign Relations of the United States [FRUS], 1952–54 series, 2: 205. 10 Acheson to Truman, May 28, 1953, box 30, folder 391, and Acheson memorandum of conversation, June 23, 1953, box 68, folder 172, both in Dean Acheson Papers, Sterling Library, Yale University, New Haven, CT. 9

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require us to initiate war at the most propitious moment that we could designate.’ 11 And when Secretary of State John Foster Dulles at a June 1954 National Security Council meeting noted that America’s allies, by and large, would not support a ‘tough policy’—and in particular a policy of pressing ‘the Russians hard during the few years in which’ the country ‘would retain atomic superiority’— Eisenhower replied: ‘if this were indeed the situation, we should perhaps come back to the very grave question: Should the United States now get ready to fight the Soviet Union? The President pointed out that he had brought up this question more than once at prior Council meetings, and that he had never done so facetiously.’ 12 The United States, of course, never actually implemented a ‘preventive-war’ strategy of this sort, but that does not mean that this kind of thinking had no effect on policy. It was, in fact, one of the elements in the policy mix—one of the ingredients in the matrix out of which policy emerged. It was one of the main factors that led US leaders to take a relatively tough line on a whole range of specific issues. The idea was that if war was inevitable, maybe it would not be the worst thing in the world to have it come sooner rather than later—to have it come while the United States was still in a relatively strong position. By taking a tough line, the United States could take its measure of Soviet policy—that is, it could see in that war just how ‘inevitable’ a showdown with the Soviet Union was. It could see whether the Soviets were fanatics intent on expanding their power, almost without regard to consequence, or whether the USSR was the sort of country the United States might be able to live with. If the Soviets were unwilling to pull in their horns even when they were weak, then perhaps war with them was inevitable, in which case it might be important to have it out with them before matters became totally unmanageable. Their reaction would serve as a kind of touchstone: US policy could go either way, depending on the kind of country the Americans found themselves dealing with. This, incidentally, bears a certain resemblance to the sort of policy Germany pursued toward Russia in 1914. The Germans at that point, like the Americans forty years later, were deeply concerned about the growth of Russian power. Taking a tough line in the showdown over Serbia was a way of seeing what Russian policy was. As one German put it at the time, it ‘would be the touchstone whether Russia meant war or not’. 13 If the Russians did not give way when they were weak, there would be no living with them when they became strong; war would then have to be seen as inevitable, and if that was the case, an early war was much better than a later one. In 1914, the ‘preventive-war’ philosophy was a key element in the policy mix. The policy of ‘bringing matters to a head’ with Russia and thus of taking 11

Eisenhower to Dulles, September 8, 1953, FRUS 1952–54, 2: 461. Emphasis in original text. ‘Discussion at the 204th Meeting of the National Security Council, Thursday, June 24, 1954’, Dwight D. Eisenhower Papers as President of the United States (Ann Whitman File), pp. 11–12, box 5, Eisenhower Library, Abilene, Kansas, and also available (through subscribing libraries) on the Declassified Documents Reference System website (Record Number CK3100224086). 13 Hoyos–Naumann meeting, July 1, 1914, in July 1914: The Outbreak of the First World War, Selected Documents, ed. Imanuel Geiss (New York: Scribner’s, 1967), p. 66. 12

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a tough line in political disputes was rooted in part in preventive war thinking, but this sort of thinking was also an element in American policy in the 1952–4 period. 14 The United States at that time—the period when US strategic superiority was at its height—took a tough line on all sorts of issues, just as Germany had in 1914, in part for the same general reason. In structural terms, the two situations were quite similar. If war came in 1914 but not in 1954, this was not because Eisenhower pursued a more complaisant policy or was less concerned with the problems created by the changing strategic balance. The fact that the two situations had such different outcomes had to do mainly with Russia—with the fact that Russia in 1914 chose war despite her strategic weakness, while Russia in the early 1950s accommodated to American power. From 1912 on, Tsarist Russia had been playing with fire in the Balkans. 15 But from 1952 on—that is, even before the death of Stalin—Communist Russia pursued a very mild policy in her dealings with the West. The Soviets, so bellicose around 1950, by 1952 were purring like pussycats, and the change had to do mostly with the fact that the Soviets understood how the strategic balance had shifted and why their policy had to be adjusted accordingly. The Communist regime was far more cold-blooded, far more calculating in its attitude toward power, than its predecessor had been—so much so that if you are looking for historical justification for the Bolshevik Revolution, it is in this area, I think, that you will find it.

2.2. THE KENNEDY PERIOD The Truman and Eisenhower periods are of real historical interest, but Americans do not relate to them the same way as they relate to the Kennedy period. That latter period evokes stronger emotions: people in the United States even today feel a more direct bond with Kennedy than with Eisenhower or Truman. It is for that reason that arguments about the Kennedy policy have a special salience in 14

See Trachtenberg, History and Strategy, esp. pp. 132, 136–7, and 148–9. Paul Schroeder e.g. refers to the ‘very bold offensive policy’ that Russia had been pursuing before 1914, a characterization that strikes me as right on target. Paul Schroeder, ‘Embedded Counterfactuals and World War I as an Unavoidable War’, in Paul Schroeder (ed.), Systems, Stability, and Statecraft: Essays on the International History of Modern Europe (New York: Palgrave Macmillan, 2004), p. 186 (also available online at: http://www2.hu-berlin.de/gesint/lehre/2002_2003/ counterfact/schroeder_wk1.pdf). One key episode was Russia’s sponsorship of the Balkan League in 1912. When the Russians showed the treaty establishing the League to French prime minister Raymond Poincaré, the French leader—by no means a Germanophile—remarked that it ‘contained the seeds not only of a war against Turkey, but of a war against Austria as well’. Poincaré notes of meeting with Russian foreign minister Sazonov, August 1912, Documents diplomatiques français (1871–1914), 3rd series, 3: 34. For the key evidence on Russia’s Balkan policy at the time, see Barbara Jelavich, Russia’s Balkan Entanglements, 1806–1914 (Cambridge: Cambridge University Press, 1991), pp. 246–7; Bernadotte Schmitt, The Coming of the War, 1914, 2 vols. (New York: Scribner’s, 1930), 1: 135; and Luigi Albertini, The Origins of the War of 1914, 3 vols. (London: Oxford University Press, 1952–7), 1: 375, 486. 15

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contemporary American culture, and this holds true in particular for arguments about Kennedy and the ‘preemptive’ use of force. When the Bush strategy of ‘preemption’ was first revealed to the press, key officials made a point of arguing that Kennedy, during the Cuban missile crisis in 1962, had opted for a ‘preemptive’ strategy. 16 Critics of the Bush policy, including some veterans of the Kennedy administration, reacted by basically denying that Kennedy had pursued a policy of this sort. According to Ted Sorensen, President Kennedy and most of his key advisers at the time of the missile crisis ‘forcefully rejected’ the idea of a preemptive strike on the missiles in Cuba ‘as would any thoughtful American president or citizen’. 17 According to Arthur Schlesinger, a preventive-war strategy is simply immoral, and during the Kennedy period moral considerations ruled out anything of the sort. When Robert Kennedy, the president’s brother, said a ‘preventive attack’ on the missiles in Cuba would be a ‘Pearl Harbor in reverse’, Schlesinger says, he ‘swung the ExCom—President Kennedy’s special group of advisors—from an airstrike to a blockade.’ 18 The Bush administration was also criticized for claiming that it had the right under international law to use force in self-defense, even if no attack was imminent. According to Bruce Ackerman, a law professor at Yale, that argument ‘went far beyond any claim made by previous American governments’. Again, this criticism was supported by a claim about the missile crisis, the claim that in 1962 ‘President Kennedy did not invoke any notion of “anticipatory self-defense.” ’ 19 What is to be made of these arguments? What light, in fact, does a study of the Kennedy period throw on this whole complex of issues? The key point to note here is that Kennedy—and not just in the context of the Cuban missile crisis—was far more willing to take preventive action than most people think. He was quite concerned, for example, about what would happen if China developed a nuclear capability. He in fact thought that a nuclear China ‘would be intolerable’. 20 He thought the Chinese nuclear facilities might therefore have to be attacked and destroyed, and approached the Soviets in the context of the Moscow Test Ban Treaty negotiations in July 1963 to see if the USSR would go along with such a policy. 21 All of this is sometimes dismissed as mere talk, but (as William Burr and 16

David Sanger, ‘Bush to Formalize a Defense Policy of Hitting First’, New York Times, June 17,

2002. 17

Sorensen letter to the editor, New York Times, July 1, 2002. Schlesinger, ‘The Immorality of Preemptive War’. 19 Bruce Ackerman, ‘But What’s the Legal Case for Preemption?’, Washington Post, August 18, 2002. 20 Kennedy’s views as described by his National Security Adviser McGeorge Bundy in a January 10, 1963, meeting with CIA Director McCone, quoted in William Burr and Jeffrey Richelson, ‘Whether to “Strangle the Baby in the Cradle”: The United States and the Chinese Nuclear Program, 1960–4’, International Security, 25, no. 3 (Winter 2000/2001): 67. 21 All this is fairly well known by now. The Burr and Richelson article cited in the previous footnote is by far the best study of the question, but note also the earlier article by Gordon Chang, ‘JFK, China, and the Bomb’, Journal of American History, 74, no. 4 (March 1988): 1287–1310, and see the evidence cited in Marc Trachtenberg, A Constructed Peace: The Making of the European Settlement, 1945–1963 (Princeton, NJ: Princeton University Press, 1999), pp. 385–6. Documents relating to the Burr and Richelson article are available online http://www.gwu.edu/∼nsarchiv/NSAEBB/NSAEBB38/. 18

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Jeffrey Richelson point out in their important article on the subject) it is quite clear ‘that Kennedy and his advisers did much more than talk.’ 22 The Chinese nuclear facilities were, of course, never attacked, but this was not because the US government rejected this kind of policy out of hand. Nothing was done, in part because the Soviet Union at that point refused to go along with such a policy, in part because Kennedy was assassinated before any final decision had been made. It is very much an open question what would have happened if Kennedy had not been shot or if the Soviet reaction in 1963 had been different—that is, if the Soviet government had been as open to the idea of a ‘preemptive’ attack on the Chinese nuclear facilities in 1963 as it was during the Nixon period just a few years later. 23 But as important as this episode is, it is the case of the Cuban missile crisis that plays the key role in the public debate, so that is what I want to focus on here. And in fact there is a whole series of points to be made about this episode. First of all, there is the obvious point that the United States was prepared to attack Cuba if the missiles were not withdrawn—although a launch of the missiles was never considered imminent; even though Cuba, as a sovereign state (more sovereign, in fact, than Iraq was in 2003) had as much right to allow Soviet missiles to be deployed on her territory as (say) Turkey had to host American missiles in 1962; and even though the UN had by no means authorized the United States to use force against Cuba. 24 22

Burr and Richelson, ‘Strangle the Baby’, p. 55. On the question of a possible Soviet attack on the Chinese nuclear facilities during the latter period, see Henry Kissinger, White House Years (Boston, MA: Little, Brown, 1979), pp. 183–6; Henry Kissinger, Years of Upheaval (Boston, MA: Little, Brown, 1982), p. 233; Henry Kissinger, Diplomacy (New York: Simon and Shuster, 1994), pp. 722–3; Raymond Garthoff, Détente and Confrontation: American-Soviet Relations from Nixon to Reagan (Washington, DC: Brookings, 1985), pp. 208–10; Rosemary Foot, The Practice of Power: U.S. Relations with China since 1949 (Oxford: Clarendon, 1995), p. 190; and esp. William Burr, (ed.), The Kissinger Transcripts: The Top-Secret Talks with Beijing and Moscow (New York: New Press, 1998), pp. 126, 142–4, and 183. A number of documents dealing with the question are available online in the National Security Archive Electronic Briefing Book on ‘The Sino-Soviet Border War, 1969’ http://www.gwu.edu/∼nsarchiv/NSAEBB/NSAEBB49/. Those documents are discussed in William Burr, ‘Sino-American Relations, 1969: The Sino-Soviet Border War and Steps Toward Rapprochement’, Cold War History, 1, no. 3 (April 2001). 24 On this last point, it is often argued that the actions the United States took were legal because they had been authorized by the Organization of American States (OAS). But under the UN Charter regional organizations like the OAS do not have the authority ‘to operate as the Security Council’s surrogate’ (as David Rivkin and Darin Bartram point out in their article ‘The Law on the Road to Baghdad’, National Review Online, August 28, 2002). Article 53 of the Charter is quite explicit in this regard: ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council’. (The single exception to this rule had to do with actions taken against the Axis powers in the ‘transitional’ period immediately following the signing of the Charter.) And putting textual analysis aside and just applying the test of logic, it is hard to see why the fact that action is taken by a group of states would in itself make that action any more legal than if it had been taken by just a single state. Would Warsaw Pact authorization have made the Soviet invasion of Czechoslovakia in 1968 any more legal than it would otherwise have been? Would an Arab attack on Israel be any more legal if it were authorized by the Arab League than it would be in the absence of such authorization? Finally, since it is American policy that is being assessed here, it is important to remember that the US government would have taken action—that is, it would have done things in much the same way—even if it had not gotten OAS support. The decision to go to 23

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But putting this rather obvious point aside, what is to be made of the other claims people make about the missile crisis in this context? What, in particular, is to be made of the argument that for the US government at the time moral considerations were of fundamental importance? Is Schlesinger, for example, right in arguing that Robert Kennedy, by raising the moral issue, was able to swing the ExCom ‘from an air strike to a blockade’? The truth here, to put it mildly, is not quite that simple. The president’s brother was by no means a ‘dove from the start’. 25 He was by no means dead set against the idea of an air strike or of decisive military action in general. To be sure, at the start of the crisis Robert Kennedy argued against a simple air strike, but this was because he wanted even stronger military action. He in fact wanted to invade Cuba. He brought up the issue of an invasion at the very first two top-level meetings held after the discovery of the missiles. There was little point, he said, to just attacking the missile sites. The Americans would be killing ‘an awful lot of people’ and would have to take ‘an awful lot of heat on it’, but to no avail, because the Soviets would just send in the missiles again and threaten the United States with retaliation in Turkey or Iran if it attacked the sites a second time. So if the US government was ‘going to get into it at all’, he wondered, shouldn’t [it] just ‘take [its] losses’ and ‘get it over with’— that is, shouldn’t [it] just solve the problem once and for all by invading the island? And if that meant war with the USSR—if the Soviets were going to ‘get into a war over this’ after they had stuck in ‘those kinds of missiles after the warning’—then that, in his view, would simply prove they were so aggressive that America would be facing war with them anyway, six months or a year down the road. So even the prospect of general thermonuclear war was not an argument for restraint. He also wondered in this context whether the United States could find a pretext for military action against Cuba—whether it could ‘sink the Maine again or something’. 26 What about the claim that by raising the Pearl Harbor issue, Robert Kennedy ‘swung the ExCom’ from ‘an air strike to a blockade’? The point about an attack being a ‘Pearl Harbor in reverse’ did come up during the first day of meetings on the issue, but it was Undersecretary of State George Ball who raised it. It was only a couple of days later, after Ball had brought up the issue again, that Robert Kennedy said that he thought Ball had a ‘hell of a good point’. 27 But that did not keep him from supporting an air strike later in the crisis—indeed, from preferring it the OAS was made only after the assistant secretary of state for Latin American affairs had given his strong assurance that the United States would be able to get what it wanted from that body. See the record of a top-level meeting, October 19, 1962, FRUS 1961–3, 11:117–18. The administration, it is quite clear, was determined to act no matter what the OAS did. When Kennedy, for example, was asked whether ‘a blockade would be legal if the OAS did not support it’, he ‘answered that it probably would not; however we would proceed anyway’. Kennedy meeting with Congressional leadership, October 24, 1962, ibid. 160. 25 As Arthur Schlesinger, Jr. claims in Robert Kennedy and His Times (Boston, MA: Houghton Mifflin, 1978), p. 507. 26 Transcript of October 16, 1962, meetings, in Ernest May and Philip Zelikow (eds), The Kennedy Tapes: Inside the White House During the Cuban Missile Crisis (Cambridge: Harvard University Press, 1997), pp. 66, 99, and 100–1. 27 Ibid. 115, 121, 143, and 149.

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to a blockade. Thus, for example, in the October 25 ExCom meeting, he ‘repeated his view that we may decide that it is better to avoid confronting the Russians by stopping one of their ships and to react by attacking the missiles already in Cuba’. 28 And the record of the October 27 ExCom meeting shows that even at that point in the crisis, he still favored an air strike: ‘he said if we attack a Soviet tanker, the balloon would go up. He urged that we buy time now in order to launch an air attack Monday or Tuesday’—that is, on October 29 or 30. 29 It is quite clear that from Robert Kennedy’s point of view, an attack on Cuba was by no means out of the question—even though neither he nor anyone else felt that the missiles were about to be launched. What about the international law argument—the claim that the US government at that time ‘did not invoke any notion of “anticipatory self-defense”’? The fact is that the government did defend its policy in those terms. The original draft of Kennedy’s October 22 speech to the nation in fact explicitly invoked Article 51 of the UN Charter, the article referring to a nation’s right to defend itself, as justifying the course of action the government was pursuing. That reference, however, was dropped from the final version, because the State Department legal adviser’s office thought it amounted ‘to a full-scale adoption of the doctrine of anticipatory selfdefense’. 30 But although Article 51 was not mentioned explicitly, the president in that speech did in substance invoke that doctrine. The situation now, as he laid out the argument, was different from what it had been in the past. Given the threat posed by nuclear weapons, a country did not have to wait until it was actually attacked before it could legitimately use force. The United States, in this case, thus had the right to deal with the threat before the missiles were actually launched. ‘We no longer live in a world’, he declared, ‘where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive, and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace’—that is, as the sort of threat that warranted military action. 31 And Adlai Stevenson, the UN ambassador, made the same basic point in a famous speech he gave at the height of the crisis. ‘Were we to do nothing until the knife was sharpened?’ he asked. ‘Were 28

Fifth ExCom meeting, October 25, 1962, FRUS 1961–3, 11: 208. Seventh ExCom meeting, October 27, 1962, ibid. 256. 30 Abram Chayes, The Cuban Missile Crisis (New York: Oxford University Press, 1974), p. 63. 31 See Theodore Sorensen, Kennedy (New York: Harper and Row, 1965), pp. 699–700. Article 2 of the UN Charter prohibited the use of force for purposes inconsistent with the ‘Purposes of the United Nations’, one of which (as defined in Article 1) was the ‘prevention and removal of threats to the peace’. The use of the phrase ‘threat to peace’ in the president’s speech thus had a certain resonance in the international law context: it suggested that the United States had the right under the Charter to use force in this case. On the related issue of what those Charter provisions meant at the time they were being drafted—that is, for the point that they were interpreted as allowing the US government to take whatever action it felt was necessary to ‘prevent aggression’—see Marc Trachtenberg, ‘The Iraq Crisis and the Future of the Western Alliance’, in David M. Andrews (ed.), The Atlantic Alliance Under Stress (Cambridge: Cambridge University Press, 2005), pp. 218–20 (and also available online at http://www.polisci.ucla.edu/faculty/trachtenberg/useur/iraqcrisis(fin13rev).doc). 29

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we to stand idly by until it was at our throats?’ 32 If this was not an argument for ‘anticipatory self-defense’, it is hard to imagine what would be. The right of self-defense was thus interpreted very broadly in 1962. The fact that US security was threatened provided the justification for what the Bush administration would now call ‘preemptive’ action. And it is important to remember that few people quarreled with that principle at the time. Even French President Charles de Gaulle, by no means a blind supporter of US policy, had no doubt that the American action was legal, even though the United States was not being attacked. ‘President Kennedy wishes to react, and to react now’, he told Dean Acheson, who had been sent over to brief him on the affair, ‘and certainly France can have no objection to that since it is legal for a country to defend itself when it finds itself in danger.’ 33 There is one final point about the missile crisis—or really about US policy in general at that time—that relates to the preventive-war issue in a perhaps more direct way. This has to do with what was going on in US–Soviet relations at the time the missiles were discovered. Kennedy’s goal, from the very beginning of his presidency, had been to stabilize East–West relations by reaching an understanding with the USSR on the whole complex of issues that lay at the heart of the Cold War—the issues relating to the division of Europe, to the status of Germany, and to the situation in Berlin. He wanted both sides to accept things as they were in Europe. He himself was willing to accept Eastern Europe as a Soviet sphere 32 Quoted in Arthur Schlesinger, A Thousand Days (Boston, MA: Houghton Mifflin, 1965), pp. 823–4. This was clearly an argument for the legitimacy of preventive military action, but—and this shows just how much people’s views on this issue have changed over the years—Schlesinger evidently saw nothing wrong with it when he wrote that book forty years ago. 33 Acheson-de Gaulle meeting, October 22, 1962, FRUS 1961–3, 11: 166. The German chancellor, Konrad Adenauer (who Acheson saw the day after he met with de Gaulle on that same mission to Europe), was contemptuous of the idea that the United States had no right under international law to impose even a blockade, and in fact actually urged the United States to invade Cuba. See Hans-Peter Schwarz, Adenauer: Der Staatsmann, 1952–1967 (Stuttgart, Germany: Deutsche Verlags-Anstalt, 1991), pp. 771–3, and Dowling to Rusk, October 24, 1962 (on Acheson’s meeting with Adenauer on October 23), available online through subscribing libraries in the Digital National Security Archive’s Cuban Missile Crisis collection http://nsarchive.chadwyck.com/nsaindexhome.htm; item number CC01224. One leading Senator—J. William Fulbright, chairman of the Senate Foreign Relations Committee— made a comment about the blockade that is also worth quoting in this context. ‘It won’t be legal’, he told Kennedy at the height of the crisis. ‘I’m not making the arguments for “legal”. This is selfdefense.’ Kennedy meeting with Congressional leadership, October 22, 1962, in May and Zelikow, Kennedy Tapes, p. 272 (punctuation changed slightly). Fulbright, incidentally, later published a book on American foreign policy called The Arrogance of Power (New York: Random House, 1966). Acheson’s own views on the general issue of the role of legal norms and moral principles in international politics are also worth noting in this context. He was notoriously contemptuous of the UN and of international law in general. International politics in his view was a jungle ‘where the judgment of nature upon error is death’; in such a world, countries like the United States could not afford to play the game according to legal rules. See Acheson to Truman, December 4, 1956, Acheson Papers, Sterling Memorial Library, Yale University, New Haven, CT, and Robert Beisner, ‘Wrong from the Beginning’, Weekly Standard, 8, no. 26 (March 17, 2003). Note especially Acheson’s comments on the issue of whether US policy during the missile crisis was legal in the Proceedings of the American Society of International Law, 1963, pp. 13–15.

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of influence, and he also made it clear to the Russians that he understood their concerns about Germany, and especially about West Germany acquiring nuclear weapons, and was willing to meet their needs in that area too. In return, he wanted the Soviets to also accept the status quo in Europe, and in particular the status quo in Berlin. From his point of view, he was willing to give the Soviets everything they could reasonably ask for while asking for very little in exchange. The problem was that the Soviets were not interested in this kind of deal, and their attitude was such that by the eve of the missile crisis, Kennedy had come to feel that a showdown with them at some point in the near future was practically unavoidable. But as he saw it, if that was the case, it was much better to have it out with them sooner rather than later—that is, while the United States still had a nuclear edge. By early October 1962, his policy on the Berlin question had thus hardened considerably. He was no longer interested in playing for time on this issue, and the reason he gave for rejecting that kind of policy is very significant, given the questions we are interested in here. The softer course of action, the policy of trying to put off a showdown, was rejected because ‘the military balance was more favourable to us now than it would be later on.’ 34 Can it be said, given all this, that the discovery of the missiles provided Kennedy with an opportunity to bring matters to a head with the Soviets sooner rather than later? The point about the changing strategic balance was probably at the back of his mind when the decision was made to confront the USSR on the Cuban issue. The fact that the Berlin issue (where such considerations were already viewed as fundamental) played a very important role during the missile crisis in itself suggests that this was the case. And indeed the sense that a crisis over Berlin was looming served as a spur to action in October 1962. ‘We’ve got to do something’, the president said on October 19, when US policy was still being worked out, ‘because if we do nothing, we’re going to have the problem of Berlin anyway.’ ‘We’re going to have this knife stuck right in our guts, in about two months’, he added, so ‘we’ve got to do something.’ 35 Kennedy thought that once the nuclear force in Cuba had reached a certain level, that country would be immune to American attack. Military action would then be ‘too much of a gamble’, and the Soviets would have a free hand to build up their bases on the island. They could keep putting in ‘more and more’ missiles. And when they had a large force there, they would be in a position, as the president analyzed the situation, to ‘squeeze us in Berlin’. 36 The implication was that America could not allow events to take that course. The US government, in other words, would have to take a relatively hard line on the Cuban issue because of a calculation about something that might happen down the road—because of something the Soviets might well do in the near future in Berlin. 34 Home to Foreign Office, October 2, 1962, FO 371/163581, British National Archives, Kew, quoted in Trachtenberg, Constructed Peace, p. 351. The evidence supporting the interpretation outlined in this paragraph is presented in chapter 8 of that book. 35 May and Zelikow, Kennedy Tapes, p. 176 (record of October 19 meeting). 36 Ibid. 90 (record of October 16 meeting).

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The Kennedy administration was thus perfectly capable of thinking in ‘preemptive’ terms, and indeed neither it nor the country as a whole saw anything wrong in doing so.

2.3. THE NORTH KOREAN NUCLEAR CRISIS, 1993–4 All the episodes I have been talking about so far took place during the most intense phase of the Cold War, the period from 1949 to 1963. The United States during that period felt that its survival as a nation was quite literally on the line. In such circumstances, it is perhaps not surprising that American leaders were willing to consider extreme strategies of the sort I have been describing. But as the global conflict faded after 1963, did traditional norms about the ‘sovereign equality of all states’ and the impermissibility of ‘anticipatory self-defense’ reassert themselves? Did the end of the Cold War in 1989–91 bring about a return to a more normal ‘Westphalian’ system, a system based on the idea that the sovereign rights of every state had to be respected? Well, not quite, and in fact in some ways international norms in this period seemed to be moving in the opposite direction—or at least that is what the story of the North Korean nuclear crisis of 1993–4 seems to suggest. The basic lines of the story here are clear enough. North Korea had begun a serious nuclear weapons program around 1980, but in 1985, under Soviet pressure, had signed the Nuclear Non-Proliferation Treaty, or NPT. In 1992, International Atomic Energy Agency (IAEA) inspectors were sent to North Korea to check up on what that country’s government had said it was doing in the nuclear area. But there were ‘discrepancies’ between what North Korea had declared to the IAEA and what the inspectors actually found. To get to the bottom of the issue and see what North Korea had actually done, the IAEA wanted to conduct more intrusive inspections. The North Koreans refused, and instead, in March 1993, announced that they were going to withdraw from the NPT—permissible under Article X of the treaty, but something no country had ever done before. North Korea might have had the legal right to withdraw from the treaty, but for the US government a North Korea moving full steam ahead in the nuclear area was ‘intolerable’, and the North Koreans were left in little doubt as to how the Americans felt. 37 In late March, for example, Secretary of Defense William Perry told the Washington Post (as that newspaper paraphrased his remarks) that the ‘United States intends to stop North Korea from developing a substantial arsenal of nuclear weapons even at the potential cost of another war on the Korean peninsula.’ Confronting the North Koreans on this matter, Perry realized, might lead to an armed conflict, but ‘Perry made clear that this danger would not deter Washington from taking whatever actions are needed to prevent North Korea from 37 See Ashton B. Carter and William J. Perry, Preventive Defense: A New Security Strategy for America (Washington, DC: Brookings, 1999), p. 126. Perry was Secretary of Defense at the time of the crisis; Carter was then a top Pentagon official.

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proceeding with its nuclear program. ‘We are going to stop them from doing that’, he declared.’ 38 In June, moreover, the North Koreans were told directly, in private talks, that ‘no sitting president of the United States would allow North Korea to acquire nuclear weapons.’ 39 And in November, President Clinton himself publicly warned the Pyongyang regime that it was playing with fire. North Korea, he declared on Meet the Press, ‘cannot be allowed to develop a nuclear bomb.’ 40 It was not just the administration that took this kind of line. The country as a whole was clearly taking the issue very seriously. In June 1994, for example, a poll found that most Americans ‘favored military action to destroy North Korea’s nuclear facilities’ if that country ‘continued to refuse international inspection’, and nearly half of those polled thought ‘it was “worth risking war” to prevent North Korea from manufacturing nuclear weapons.’ 41 Even in 1991, according to a South Korean observer, many well-informed Americans had been ready to contemplate a ‘preemptive strike against North Korea’. 42 And as the crisis developed, attitudes hardened. By mid-1994, prominent figures in the press and in the policy world were openly calling for a very tough policy. To give but one example: Brent Scowcroft and Arnold Kanter, who had played key policymaking roles in the previous Republican administration, published an article in the Washington Post called ‘Korea: Time for Action’. ‘We should tell North Korea’, they wrote, ‘that it either must permit continuous, unfettered IAEA monitoring to confirm that no further reprocessing is taking place, or we will remove its capacity to reprocess.’ The use of military force, they conceded, might mean war, but in their view the North Korean regime—and this was a very standard ‘preventive-war’ argument— had to ‘be made to understand that if war is unavoidable, we would rather fight it sooner than later, when North Korea might have a sizable nuclear arsenal.’ 43 To be sure, the American and North Korean governments were talking to each other during this period, and the North Koreans agreed relatively early on to suspend their decision to withdraw from the NPT. But those negotiations failed to settle the dispute. North Korea, moreover, was increasingly at loggerheads with the IAEA—and increasingly determined, it seemed, to move ahead with its nuclear program. What that implied for the Americans was that time was running out— that without an agreement, sanctions would have to be imposed. But sanctions, the North Koreans said, would mean war, and US officials were by no means 38

R. Jeffrey Smith, ‘Perry Sharply Warns North Korea’, Washington Post, March 31, 1994. Joel Wit, Daniel Poneman, and Robert Gallucci, Going Critical: The First North Korean Nuclear Crisis (Washington, DC: Brooking Institution Press, 2004), p. 55. Gallucci was the chief American negotiator on this issue. 40 Don Oberdorfer, The Two Koreas: A Contemporary History (Reading, MA: Addison-Wesley, 1997), p. 295. 41 Ibid. 323. See also the polling data cited in Leon Sigal, Disarming Strangers: Nuclear Diplomacy with North Korea (Princeton, NJ: Princeton University Press, 1998), pp. 302–03 n. 36. 42 Wit, Poneman, and Gallucci, Going Critical, p. 28. 43 Brent Scowcroft and Arnold Kanter, ‘Korea: Time for Action’, Washington Post, June 15, 1994. Scowcroft had been National Security Adviser under presidents George H. W. Bush and Gerald Ford; Kanter had been deeply involved with the North Korean question as a key State Department official during the Bush administration. See also Sigal, Disarming Strangers, pp. 81–2, 153–4, and esp. 162–3. 39

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convinced that the North Koreans were bluffing. And the Americans for their part continued to take a hard line. ‘Despite the risks’ (according to the most authoritative account of US policy on this issue) it was felt that ‘the United States could not allow North Korea to flout its nonproliferation obligations.’ 44 That meant that the US government would have to prepare for war, but the preparations it took (as it itself realized) might provoke a North Korean attack. As then Secretary of Defense Perry later put it, he and other key US officials ‘knew that we were poised on the brink of a war that might involve weapons of mass destruction.’ 45 The smell of war was in the air. The top US Air Force general in Korea later told Don Oberdorfer ‘that although neither he nor other commanders said so out loud, not even in private conversations with one another, “inside we all thought we were going to war.”’ 46 It is hard to believe that this was all simply a gigantic bluff and that the Clinton administration from the very start had no intention of actually using force, no matter how intransigent the North Koreans turned out to be. No one, of course, knows for sure what the government would have done if the crisis came to a head; it is quite possible that Clinton himself did not know at the time precisely how far he was prepared to go. But to the extent the claims of former officials are to be believed, to the extent the administration had actually opted for a policy of keeping North Korea nonnuclear, through military means if necessary, or had even just opted for a policy which it knew might set off a process it could not fully control, a process that might lead to war—to that extent, the administration had opted for a kind of preventive-war policy. Note that to make that point, one does not have to argue that the administration had actually decided to start a war with North Korea. In fact, the government had not actually decided, if all else failed, to use military force even on a very limited scale. Certainly that possibility—the possibility of what Scott Sagan calls a ‘preventive attack’ and opposed to a full-scale ‘preventive war’—was being considered. The idea of air strike that would destroy the North Korean nuclear facilities—the ‘Osirak option’, as it was called—had by no means been ruled out. 47 And indeed, it seems that ‘in June 1994, U.S. decision-makers were on the verge of seriously considering a preemptive strike against the Yongbyon nuclear facilities.’ 48 But none of Clinton’s advisers thought at that point that the United States should launch such an attack right away. They certainly wanted to take less violent measures first. But they did think that sooner or later, if all else failed, they 44

Wit, Poneman, and Gallucci, Going Critical, p. 188. Carter and Perry, Preventive Defense, p. 131. It was believed at the time that North Korea might have already built (and hidden) one or two nuclear weapons. 46 Oberdorfer, Two Koreas, p. 306. 47 Carter and Perry, Preventive Defense, pp. 128 and 131; and Wit, Poneman, and Gallucci, Going Critical, pp. 210–11, 220, and 244. For Ashton Carter’s interest in this sort of option even prior to taking office, see Henry Sokolski, Best of Intentions: America’s Campaign against Strategic Weapons Proliferation (Westport, CT: Praeger, 2001), pp. 90–2, and the sources cited there. See also Sigal, Disarming Strangers, pp. 59–60, referring to a paper written for Carter by Philip Zelikow, a holdover from the Bush administration, recommending an attack on the North Korean nuclear facilities. 48 Wit, Poneman, and Gallucci, Going Critical, p. 406. 45

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might have to go that route. So the ‘Osirak option’ remained a possibility, and in fact when the president met with his top advisers on June 16, 1994, to consider America’s military options, one of the purposes of that meeting was ‘to deliberate further on the “Osirak option.” ’ 49 As it turned out, Clinton did not even have to decide at that meeting on the deployment options that had been prepared for him—options which, it was understood, involved a certain risk of war. He was ‘within minutes of selecting’ one of those options when word came from former President Jimmy Carter in Pyongyang that an agreement with North Korea might be possible, and an arrangement called the ‘Agreed Framework’ was eventually worked out. The issue was settled, at least for the time being. Nevertheless, the episode tells us something important about American policy. It shows that the US government felt it had the right to insist that a sovereign state should not develop nuclear weapons on its own territory. It felt it had the right to demand that North Korea remain nonnuclear—indeed, the right to use force against that country if it did not accede to that demand. And America was so sure of its right to act in this way that the administration did not even see the need, at least during the initial phase of the crisis, to offer the North Koreans much in exchange for their accepting a nonnuclear status—and the country as a whole saw even less of a need to do so. 50 Eventually, of course, major concessions were made, but the assumption all along was that the United States had the right to prevent a ‘rogue’ Third World state from going nuclear, by whatever means were necessary. Was this all that different from the basic thinking of the Bush administration after 2001? Former Secretary Perry (together with Ashton Carter, who had worked under him in the Pentagon) published a book in 1999 called Preventive Defense: A New Strategy for America. In that book, Perry and Carter called for ‘counterproliferation programs that include passive defenses such as defensive chemical suits, active defenses such as theater missile defenses, and counterforce programs’. The Bush National Security Strategy document called in very similar terms for ‘proactive counterproliferation efforts’, and in particular for the development in this context of ‘active and passive defenses, and counterforce capabilities’, to help America deal with ‘the threat before it is unleashed.’ 51 Those 49

Wit, Poneman, and Gallucci, Going Critical, p. 220. Gallucci et al. characterize the initial US position as follows: ‘The Americans’ objective was somehow to nudge the North Koreans back toward full NPT compliance, or at least to buy time while a more enduring solution was sought. And it had to be done without making any substantive concessions.’ Ibid. 55; see also pp. 73 and 97. According to Oberdorfer, Gallucci privately ‘characterized his initial negotiating posture as, ‘If they do everything we want, we send them a box of oranges.” ’ Oberdorfer, Two Koreas, p. 291. For the view in important nongovernmental circles, see Wit, Poneman and Gallucci, Going Critical, pp. 236–8 (for reaction to the Carter trip), and pp. 335–9 (reaction to the Agreed Framework). 51 Carter and Perry, Preventive Defense, p. 142; ‘National Security Strategy of the United States of America’, p. 14. On the ‘counterproliferation’ strategy, see also James J. Wirtz, ‘Counterproliferation, Conventional Counterforce and Nuclear War’, Journal of Strategic Studies, 23, no. 1 (March 2000). The mere coining of the term ‘counterproliferation’, it is important to note, reflected the belief that the old ‘nonproliferation’ policy was too passive and that far more active policy needed to be adopted. 50

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references to counterforce suggest that policymakers in both cases were thinking at least to some extent in ‘preemptive’ terms. Indeed, Perry himself testified, just before the September 11 attacks, that because there could never be any guarantee that direct defense would be ‘fully effective’, the US government needed to ‘establish a policy’ that ‘we, the United States, will attack the launch sites of any nation that threatens to attack the United States with nuclear or biological weapons.’ 52 People like William Perry and Ashton Carter understood that the policy the Clinton administration pursued toward North Korea in 1994 was cut from the same cloth as the Bush strategy. Eight years before the Bush administration started talking about ‘preemption’, Perry and Carter pointed out, ‘the Clinton administration contemplated its own act of preemption against the strange, isolated regime then considered the greatest threat to U.S. national security. The two of us, then at the Pentagon, readied plans for striking at North Korea’s nuclear facilities and for mobilizing hundreds of thousands of American troops for the war that probably would have followed.’ 53 And Perry and Carter were not the only Clintonera officials to take this kind of line—that is, to take the view that ‘preemptive’ action could not simply be ruled out on moral or legal or even on general political grounds. Walter Slocombe, another high Defense Department official during the Clinton period, published an article in Survival in 2003 basically siding with the Bush administration about ‘preemption’. In Slocombe’s view, ‘a strong case exists that the right of “self-defense programs” includes a right to move against WMD programs with high potential danger to the United States (and others) while it is still feasible to do so.’ 54 The point here, of course, is not that there was no difference between the Bush strategy and the policy pursued under Bill Clinton. It is simply that there is a greater element of continuity here than people realize. There is a second point worth making about the North Korean nuclear crisis, and this has to do with the way the other major powers reacted to what the United States was doing at the time. They did not really oppose what America was doing in 1993–4; they were not outraged by the fact that the Americans were willing to take military action if all else failed. You might have expected China, for example, and perhaps also Russia as well, to have pursued something of an anti-American policy in the crisis—a policy aimed at restraining the United States and building 52 ‘The Administration’s Missile Defense Program and the ABM Treaty’, 107th Congress, First Session, hearing before the Senate Foreign Relations Committee, July 24, 2001, p. 88. Available online at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_hearings&docid= f:74505.pdf 53 Ashton Carter and William Perry, ‘Back to the Brink’, Washington Post, October 20, 2002. 54 Walter Slocombe, ‘Force, Pre-emption and Legitimacy’, Survival, 45, no. 1 (Spring 2003), p. 125. In a footnote appended to this passage, Slocombe says that the fact that countries like North Korea and Iraq were in breach of their obligations under the NPT provided a legal basis for action. ‘It is certainly arguable’, he writes, ‘that other states are entitled to resort to force to compel compliance with such obligations.’ Slocombe thus simply ignores the fact that North Korea, under the terms of the treaty itself, had the right to withdraw from the NPT regime.

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up counterweights to American power, especially in their neck of the woods. But you just did not see anything of the sort. 55 This sort of policy can, of course, be explained in terms of the particular interests of the countries involved. China did not want a nuclear North Korea, in large part because of the spillover effects. If North Korea went nuclear, South Korea and Japan would probably follow, and maybe, with the whole region going nuclear, Taiwan would be tempted to join the club. But none of that would be to China’s liking. Taiwan, moreover, might be tempted to go nuclear even if Japan and South Korea did not; given China’s basic policy on the Taiwan issue, it might be to that country’s interest to establish the principle that force could be used ‘preemptively’ in such a case. China certainly ‘reserved the right to use force’ if Taiwan tried to develop a nuclear capability, and more or less going along with what the United States was doing with North Korea might lend a degree of legitimacy to such a policy. 56 The same kind of point applied to Russia, which also had a certain interest in establishing the legitimacy of the principle of ‘preemption,’ which might provide a kind of legal basis for intervention in Russia’s ‘near abroad’. Indeed, Russian officials later argued that they had the right to intervene in Georgia, whose territory, they claimed, was serving as a refuge for Chechen rebels; the US-backed principle of ‘preemption’, they said, would justify such a policy. 57 But it seems that there is more to the story than that—more to the story than can be explained by pointing simply to the particular interests of the countries in question. It seems that there is something more general at work—a certain sense that the major powers have a common interest in limiting the sovereignty of smaller, less responsible, states. The great powers see themselves as members of a very small and exclusive club, a club that essentially runs the international system as a whole, and they feel that they have a certain interest in perpetuating this kind of arrangement. That means that they cannot really take the principle of the ‘sovereign equality of all states’ too seriously—certainly not when their basic interests, or indeed those of other great powers or of the great powers as a bloc, are threatened. The major powers obviously do not always see eye to eye. Their interests often conflict, sometimes very sharply. But whatever their disagreements, they 55 For the policy of the major powers in question—the four other permanent members of the UN Security Council—see the references in the entries for China, Russia, France, and Britain in the index to Wit, Poneman, and Gallucci, Going Critical. Note esp. pp. 154–5, 198–9, and 208–9 (for China); pp. 156, 197, and 209 (for Russia); and pp. 153, 156, 158, and 194 (for Britain and France, characterized here as ‘nonproliferation hawks’). On Chinese policy at the climax of the crisis, see also Oberdorfer, Two Koreas, pp. 320–1. For more information, pointing in the same general direction, on Chinese policy on this issue more recently, see Denny Roy, ‘China’s Reaction to American Predominance’, Survival, 45, no. 3 (Autumn 2003), pp. 63, and 67, and Alastair Iain Johnston, ‘Is China a Status Quo Power?’, International Security, 27, no. 4 (Spring 2003), pp. 40–1 and esp. n. 84, plus the sources cited in those passages. Note also what Johnston says here about the Chinese more generally ‘not trying as hard’ as they might to balance against the United States (p. 39), a view shared by most commentators, including Roy. 56 See Thomas Christensen’s contribution to Richard Ellings and Aaron Friedberg, eds, Strategic Asia 2001–02: Power and Purpose (Seattle, WA: National Bureau of Asian Research, 2001), p. 48. 57 See ‘Putin’s Folly’, The Economist (US edition), September 21, 2002.

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nonetheless have a certain common interest in supporting a regime that gives the great powers special rights, in fact if not in theory. 58 And their policy during the 1993–4 North Korean nuclear crisis should probably be seen in this context.

2.4. THE ROAD TO WAR IN 1941 So during the Cold War and even in the post-Cold War period ‘preemptive’ action was by no means out of the question. But there was something very distinctive about all the cases I have mentioned. They all had to do with nuclear weapons— that is, with their acquisition or deployment by a hostile power. And that fact raises the question of whether preventive action was contemplated only because nuclear weapons are so special. Does action of this sort become a live issue only when nuclear weapons enter into the equation, or do the roots run deeper? Is the problem, as many theorists imply, rooted in the basic structure of international politics—in the fact that in a world where states have to provide for their own 58 I touch on some of these issues in an essay called ‘Intervention in Historical Perspective’, in Carl Kaysen and Laura Reed (eds), Emerging Norms of Justified Intervention (Cambridge, MA, 1993), and also available at http://www.polisci.ucla.edu/faculty/trachtenberg/cv/INTERVEN.doc. The tradition I am alluding to here has been an important (although by no means the dominant) element in great power political thinking for centuries. One associates it in particular with Castlereagh and Metternich—with the Congress of Vienna and the Concert of Europe. But it was also a major element in Roosevelt’s thinking during World War II. Roosevelt, in fact, originally wanted a postwar international order in which the ‘Four Policemen’—America, Russia, Britain and China—would keep everyone else (including countries like France) disarmed, a proposal the Soviets were quick to accept. This proposal for the ‘enforced disarmament of our enemies and, indeed, some of our friends after the war’, as Roosevelt put it, scarcely corresponded to the idea of an international order based on the ‘sovereign equality of all states’. See Roosevelt–Molotov meetings, May 29 and June 1, 1942, Foreign Relations of the United States 1942, vol. 3, pp. 568–9, 573, and 580. In our own day, this idea of an at least semi-cooperative great power-dominated political system is associated above all with political figures like Henry Kissinger, who of course began his scholarly career with a dissertation on the Vienna settlement. On the idea of China as part of a kind of concert system, a system in which the nonproliferation regime would play a central role, see Carter and Perry, Preventive Defense, pp. 119–22. See also Susan L. Shirk, ‘Asia-Pacific Regional Security: Balance of Power or Concert of Powers?’, in David Lake and Patrick Morgan (ed.), Regional Orders: Building Security in a New World, (Penn State University Press, 1997). Note especially Shirk’s argument that the ‘North Korean nuclear threat’ might be ‘a catalytic event for an emerging cooperation among the Asia-Pacific powers that could evolve into a concert of powers’ (p. 246; see also pp. 262–5). Note also the two articles on contemporary Chinese foreign policy cited in n. 55 above—and especially Roy’s prediction (in one of those articles) that ‘as China becomes a great power with an interest in responsible management of international politics, its desire to prevent the spread of WMD will likely grow’ (p. 65). One comes across this sort of theme quite a bit in recent years in articles written by specialists in Chinese foreign policy. To take just one example: ‘Chinese strategists’, according to Evan Medeiros and M. Taylor Fravel in an article called ‘China’s New Diplomacy’ published in Foreign Affairs in November–December 2003, ‘increasingly see their interests as more akin to major powers and less associated with those of developing nations’. Finally, for a brief survey of the development of Chinese policy on the proliferation issue that supports this general interpretation, see Weixing Hu, ‘Nuclear Nonproliferation’, in Yong Deng and Fei-Ling Wang (eds), In the Eyes of the Dragon: China Views the World (New York: Rowman and Littlefield, 1999).

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security, they are under pressure to act aggressively, even for purely defensive purposes? To get at that issue, it makes sense to examine American policy at a time when nuclear weapons did not enter into the equation. So in this section I would like to look at the pre-Pearl Harbor period, a period when the United States (as many people, even scholars, seem to think) was a country that ‘asked only to be left alone’. 59 If it turns out that that view is incorrect—if it is not quite true that the United States had opted for a purely defensive policy, and if in fact the government was pursuing a far more active and, indeed, in a certain sense, more aggressive policy because of what it viewed as a developing threat to national security—then that historical conclusion would obviously have some bearing on the issue at hand. If the Roosevelt strategy in 1941 is to be viewed in ‘preemptive’ terms, then the Bush strategy might have to be seen as less of an anomaly—as more natural, more rooted in the basic structure of international politics, than people think. What then is the picture that emerges when you look at US policy in the period before Pearl Harbor, both toward Europe and toward Japan? The first thing you are struck by when you study this period is that the United States was not a country that ‘asked only to be left alone’. America in both areas was very active indeed. By late 1941, the United States was fighting an undeclared naval war against Germany in the North Atlantic. America had in fact gone on the offensive. As Admiral Harold Stark, the Chief of Naval Operations, wrote on August 28: ‘The Good Lord knows if the Germans want an excuse for war, they have plenty.’ 60 President Roosevelt’s policy by that time, as he said, was to ‘wage war, but not declare it’. He would become ‘more and more provocative’, he told Churchill in early August, and ‘if the Germans did not like it, they could attack American forces.’ 61 He also pursued a very active policy in the Pacific at this time. On July 26, following the Japanese move into southern Indochina, the United States (together with the British and the Dutch) ended oil deliveries to Japan, and it is generally recognized that the oil embargo put the United States and Japan on a collision course. To get the oil she needed (if only to avoid a collapse of her military position in China), Japan could in principle seize the oil-producing areas in the Dutch East Indies. But it was clear enough that a move into the Indies would almost certainly mean war with the United States. So to get the oil without provoking a war with America, Japan needed to negotiate an agreement with the United States that would allow oil shipments to resume. The American terms, however, were 59 The argument I make in this section is developed in much greater detail in ch. 4 of my book The Craft of International History: A Guide to Method (Princeton, NJ: Princeton University Press, 2006). For the claim that America at this time ‘asked only to be left alone’, see A. J. P. Taylor, The Origins of the Second World War (New York: Atheneum, 1961), p. 278. Note also Randall Schweller’s use of that passage from the Taylor book in his article ‘Bandwagoning for Profit: Bringing the Revisionist State Back In’, International Security 19, no. 1 (Summer 1994), 94–5. 60 Stark to Admiral Hart, August 28, 1941, US Congress, Hearings Before the Joint Committee on the Investigation of the Pearl Harbor Attack [PHA], Part 16, p. 2451 (Washington, DC: GPO, 1946). 61 Churchill’s account to the British cabinet, August 19, 1941, quoted in David Reynolds, The Creation of the Anglo-American Alliance, 1937–41: A Study in Competitive Co-operation (Chapel Hill, NC: University of North Carolina Press, 1982), p. 214.

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severe: as part of the agreement, Japan would have to agree to withdraw from China. So Japan had in effect been cornered. She was forced to choose between war and capitulation on the China issue, and the Pearl Harbor attack has to be understood in that context. It is thus quite clear that US policy played a major role in bringing on the war. But effect is not the same as intent, and most of the scholars who have studied the issue assume that a war with Japan was the last thing the Roosevelt administration wanted at this time. Given that the United States was heading toward war with Germany, why would the Americans also want a second war with Japan, if there was any honorable way to avoid it? But if that view is correct—if Roosevelt really wanted to avoid war with Japan—how then is US policy to be explained? If Roosevelt was in full control of American policy, and if he knew what he was doing—in particular, if he understood what the implications of the embargo were—then the policy would have to be seen as deliberate. So to argue that he did not deliberately put the United States on a collision course with Japan, you have to argue either that he did not understand the effect America’s hard line would have, or that he had lost control of policy. And in fact historical arguments in this area— the arguments that purport to explain how the government adopted a policy that led to a war it very much wanted to avoid—fall into those two categories. But neither set of arguments really stands up to analysis. There certainly was no miscalculation. Roosevelt and his chief advisers clearly understood what the embargo meant. The president understood that it would ‘drive the Japanese down to the Dutch East Indies’, and would thus, as he said, mean ‘war in the Pacific.’ 62 And on the second issue, it is now quite clear that the president had not lost control of American policy. Contrary to what a number of scholars have argued, policy had not been hijacked by people like then-Assistant Secretary of State Dean Acheson. Mid-level officials like Acheson had not defied Roosevelt’s wishes and imposed an embargo surreptitiously, without his knowledge or consent. Acheson himself, it turns out, was taking orders from Undersecretary of State Sumner Welles, and given what we know about the Welles–Roosevelt relationship, it is safe to assume the president himself was calling the shots. 63 62 Quoted in Patrick Hearden, Roosevelt Confronts Hitler: America’s Entry into World War II (DeKalb, IL: Northern Illinois University Press, 1987), p. 211. It was in fact because he understood what the embargo meant that he had earlier opposed it so fiercely. See, e.g., Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1932–1945 (Oxford: Oxford University Press, 1979; paperback edition, 1981), pp. 273–5. Note also Roosevelt’s well-known confrontation with Secretary of the Interior Harold Ickes on the issue in June 1941. The documents were published in The Secret Diary of Harold L. Ickes, 3 vols. (New York: Simon and Schuster, 1954–5), 3: 553–60. 63 The argument about the president losing control of policy was laid out independently by Jonathan Utley and Irvine Anderson. See Jonathan Utley, Going to War with Japan, 1937–1941 (Knoxville, NJ: University of Tennessee Press, 1985); Jonathan Utley, ‘Upstairs, Downstairs at Foggy Bottom: Oil Exports and Japan, 1940–41’, Prologue 8 (Spring 1976): 17–28; Irvine Anderson, ‘The 1941 De Facto Embargo on Oil to Japan: A Bureaucratic Reflex’, Pacific Historical Review, 44 (1975): 201–31; and Irvine Anderson, The Standard Vacuum Oil Company and United States East Asian Policy, 1933–1941 (Princeton, NJ: Princeton University Press, 1975). The Utley-Anderson argument has been accepted by a number of major scholars. See, e.g. Reynolds, Anglo-American Alliance, pp. 235–6; Akira Iriye, The Origins of the Second World War in Asia and the Pacific (London: Longman, 1987), p. 150;

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But if Roosevelt had decided to impose the embargo on Japan knowing full well what it meant, then he had in effect opted for a course of action which he knew would in all probability lead directly to war with Japan. US policy toward Japan at this point, in other words, has to be viewed as deliberate. And in fact US leaders in late 1941 saw things quite clearly. They did not think Japan would be deterred by the embargo. They expected war. Japanese leaders, as Welles pointed out in November 1941, had to provide ‘some justification to their own people after four years of national effort and sacrifice’ in China. He therefore found it hard to believe that the Japanese would ‘agree to evacuate China completely’. But ‘nothing less’, he said, would ‘satisfy [the] United States’. 64 Admiral Stark also saw war coming. ‘Two irreconcilable policies can not go on forever—particularly’, he said, alluding to the embargo, ‘if one party can not live with the set up. It doesn’t look good.’ 65 But why would Roosevelt pursue that kind of policy? Given especially that he was moving toward war with Germany, why would he have wanted to fight a second war with Japan? You cannot say he pursued the policy he did because he was bound by American principles. Those principles had not prevented him from pursuing a much more forbearing policy prior to July 26. So why did he opt for such a tough policy toward Japan at precisely that time—that is, just a few weeks after the German invasion of the USSR? You can, of course, dismiss Roosevelt as a bungler. You can assume that on matters of foreign policy Roosevelt was simply incompetent. But before you jump to such conclusions, it might make sense to consider whether there was method to his madness—whether his Japan policy served a rational purpose, a purpose related to his most fundamental foreign policy goals. And since Germany was in his view the real threat, the question has to be whether the Japan policy is to be understood in the context of Roosevelt’s European policy, and in particular in the context of his policy of taking the United States into the European war. How then did Roosevelt and his top advisers approach that more basic issue? His chief military advisers did not mince words on this question. They wanted the United States to enter the European war, and the sooner the better. Admiral Stark, for example, told the President less than two days after the Germans attacked the Soviet Union that he ‘considered every day of delay in our getting into the war as Dallek, Roosevelt and American Foreign Policy, p. 275. For the counterargument, quite compelling in my view, see Waldo Heinrichs, Threshold of War: Franklin D. Roosevelt and American Entry into World War II (New York: Oxford University Press, 1988), pp. 141–2 and 246–7. The British records of the Argentia meeting in early August also show that Roosevelt and Welles had decided to take a very hard line on the question of oil deliveries to Japan. See especially extract from record of a meeting between the Prime Minister and President Roosevelt on August 11, 1941, FO 371/27909, and Cadogan minute of meeting with Welles, August 20, 1941, FO 371/27977, British Foreign Office Japan Correspondence, 1941–1945 [microfilm publication] (Wilmington, DE: Scholarly Resources, 1978), series for 1941, reels 7 and 15 respectively. 64 Australian Minister to the United States R. G. Casey to Australian Department of External Affairs, November 14, 1941, Australian Department of Foreign Affairs, Documents on Australian Foreign Policy, 1937–49, 5: 197. 65 Stark to Admiral Kimmel, November 7, 1941, PHA, Part 16, p. 2220.

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dangerous’. Stark wanted to start escorting convoys immediately, calculating that escorting ‘would almost certainly involve us in the war’. 66 The military authorities laid out their thinking in much greater detail in an important document, usually referred to as the ‘Victory Program’, which they submitted to President Roosevelt on September 11, 1941, sixty years to the day before the attacks on New York and Washington. 67 They analyzed the issue in what can be considered ‘preventive-war’ terms. Germany, they believed, would defeat Russia by the following summer, and would probably need a further full year ‘to bring order out of chaos in the conquered areas’. The Germans would then begin to exploit those areas economically, building up their military power and preparing for a showdown with the United States. A German attack on America was by no means imminent. The Germans might, in fact, ‘wish to establish peace with the United States for several years’ after ‘conquering all of Europe’. But America would be foolish to allow Germany to set the timetable for action. If the United States did not act quickly, she would be faced in the ‘not distant future by a German strongly intrenched economically, supported by newly acquired sources of vital supplies and industries, with her military forces operating on interior lines, and in a position of hegemony in Europe which will be comparatively easy to defend and maintain.’ America would then have to fight a ‘long-drawn-out war of attrition’. Time was thus ‘of the essence’, according to this document. ‘The longer we delay effective offensive operations against the Axis’, its authors argued, ‘the more difficult will become the attainment of victory’. They therefore called for ‘active participation in the war by the United States’—for ‘a rapidly accelerated all-out effort with a view to conducting decisive, offensive operations against the enemy before he can liquidate or recoup from his struggle with Russia.’ 68 It was obvious to America’s military leaders that the United States had to be concerned with the European balance of power. It was obvious to them that a 66 Stark to Cooke, July 31, 1941, PHA, Part 16, p. 2175. One should note the timing here—that is, the fact that Stark put the point to the president so soon after the Soviet Union was invaded— and also the point that he chose to mention that fact in his letter. This suggests that he was already analyzing the situation along the lines which the military leadership (as will be seen) were to take in the ‘Victory Program’, the key document to be discussed in the next paragraph. But the argument about the implications of the German attack on Russia was not the only factor here, and Stark, it should be noted, had been thinking for some time in terms of getting America into the war as quickly as possible, well before the possibility of a German conquest of the USSR had become an issue. He summed up what his thinking had been in a memorandum he sent to the Secretary of State on October 8: ‘I have assumed for the past two years that our country would not let Great Britain fall; that ultimately in order to prevent this we would have to enter the war and as noted above I have long felt and have stated that the sooner we get in the better.’ Ibid., p. 2217. 67 The official title of this document, dated September 11, 1941, was ‘Joint Board Estimate of United States Over-All Production Requirements’. It was signed by Stark and by Army Chief of Staff General George Marshall. A copy was published in American War Plans, 1919–1941, ed. Steven Ross, vol. 5 (New York: Garland, 1992). The main study appears on pp. 160–89, but the document also included an ‘Estimate of Army Ground Forces’, published here on pp. 190–201. Extensive quotations from the Victory Program also appear in Robert E. Sherwood, Roosevelt and Hopkins: An Intimate History (New York: Harper, 1948), pp. 410–18. 68 Victory Program (Garland edn), pp. 163, 165, 168–9, and 193–4.

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German conquest of all of Europe would pose a grave threat to American security. The assumption was that the country had to be concerned about these things— that it had to deal with these threats while it was still able to, and before they became almost totally unmanageable. The country, that is, could not afford to wait until its own territory was attacked. It instead had to be prepared to move ‘preemptively’. It was not just the military leaders who analyzed the situation in those terms. The president himself saw things in much the same way. America, he told the country over and over again, in an extraordinary series of speeches in 1940 and 1941, had to worry about what was going on overseas. America’s safety and America’s future depended on events unfolding far from her borders. She could not afford to wait until ‘the enemy has landed on our shores’; it was ‘stupid to wait until a probable enemy has gained a foothold from which to attack.’ 69 Indeed, he said in September 1941, it would be foolish to hold back simply because Hitler seemed ‘to be making slower progress than he did the year before’. That, in his view, was ‘the very moment to strike with redoubled force’. 70 And in his famous fireside chat of September 11, 1941—again, that date is now hard to forget— the speech in which he announced the policy of shooting first in the Atlantic, he framed the issue in what can be viewed as ‘preventive-war’ terms. ‘One peaceful Nation after another’, he said, ‘has met disaster because each refused to look the Nazi danger squarely in the eye until it actually had them by the throat. The United States will not make that fatal mistake.’ Now, he said, was ‘the time for prevention of attack’; ‘when you see a rattlesnake poised to strike, you do not wait until he has struck before you crush him.’ 71 He was referring here to the German Uboat threat, but that remark could be construed in a somewhat broader sense—as referring, that is, to the threat posed by Nazi Germany as a whole. I think it is quite clear, in fact, that the president agreed with his top military advisers on the importance of bringing the United States into the European war as quickly as possible. Was his policy toward Japan then framed with an eye toward achieving that goal? George Kennan, for one, seemed to think so, and he was very critical of Roosevelt for pursuing a policy of that sort. ‘If it really was Roosevelt’s feeling’, he wrote, ‘that we ought to enter the European war, then to maneuver us first into a war with Japan, or even to permit us to become involved in such a war, was the worst possible way to do it.’ 72 And Kennan was certainly right in thinking that if America had to enter the European war, it would have been much better to just do it directly and remain at peace with Japan—that maneuvering the 69 Radio Address Announcing Proclamation of an Unlimited National Emergency, May 27, 1941, The Public Papers and Addresses of Franklin D. Roosevelt, comp. Samuel Rosenman, vol. 10 (for 1941) (New York: Harper, 1942), p. 189. 70 Labor Day Radio Address, September 1, 1941, ibid. 367. 71 Fireside Chat on National Defense’, September 11, 1941, ibid. 388–90. Former Secretary of State George Shultz, incidentally, also used the rattlesnake metaphor in his article calling for action against Iraq; ‘Act Now’, Washington Post, September 6, 2002. 72 George Kennan, comment on three papers on Allied leadership in World War II, including one by Robert Dallek on Roosevelt, in Survey, 21, no. 1–2 (Winter–Spring 1975), 30.

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country ‘first into a war with Japan’ was the worst possible way to bring America into the war with Germany. The problem was that given both the German policy of avoiding war with America (at least for the time being) and political realities at home, it might have been the only way to do it quickly enough. If that was in fact the case, I for one would not criticize Roosevelt for managing things the way he did. He had to work with the world as he found it. If this really was ‘the worst possible way’ to get into the war, then it is not Roosevelt but rather the country as a whole that ought to be blamed. Indeed, Kennan himself seemed to recognize that it was America’s unwillingness as a nation to use force for purely political purposes, as a deliberate act of policy, that lay at the heart of the problem. ‘I continue to regret’, he said, ‘that curious quirk in the American political mentality which apparently makes it impossible for us to enter by our own deliberate decision great wars which we later discover, once we are in them, to be of the most apocalyptic importance.’ 73 The idea here is that America paid a huge price—namely, having to fight an essentially unnecessary second war with Japan—because it could not bring itself to declare war on Germany as an act of policy. The country paid a huge price because it refused to act ‘preemptively’—because it refused to go to war, officially at any rate, simply because it felt its security would be imperiled a number of years down the road by a German victory in Europe. That basic attitude virtually forced the administration, which did think in those ‘preemptive’ terms, to stage-manage things so that it would appear the United States was the victim of unprovoked attack. This point, of course, has a certain bearing on the way we approach the problem of ‘preemption’ today. What upsets many people about the Bush policy is not so much its acceptance of the idea that the United States might in some cases have to act ‘preemptively’ and deal with threats before the country itself has been attacked, as the way that policy has been presented to the world. They are shocked that this principle of ‘preemption’ has been embraced so overtly and so directly. It is the tone of the policy which they find so offensive. And in fact a strong argument can be made that if that policy is to be pursued at all, the country would be better off if it were packaged differently—if the administration, that is, avoided the sort of rhetoric which it knows people will find provocative. But even if you share that view—even if you feel that issues of this degree of seriousness and complexity need to be discussed in a more restrained and more nuanced way—you still need to recognize that there is another side to this coin. You might think it is unwise to proclaim one’s right to take ‘preemptive’ action in too blatant and too vocal a way. But at the same time you need to recognize the possibility that a country like the United States can err in the opposite direction—that it can in fact pay an enormous price for refusing to accept the legitimacy of ‘preemptive’ action and framing its policy accordingly. If the 1941 case teaches us nothing else, it should certainly teach us that. 73

Ibid. Note also his discussion of this issue in George Kennan, American Diplomacy, 1900–1950 (Chicago, IL: University of Chicago Press, 1951), pp. 83–4.

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What do we mean by a ‘preventive-war’ policy? When we use the term, we generally have two things in mind. We mean first of all a policy based on the idea that force can be used even if a country has not been attacked. But we also mean a policy rooted in concerns about the future, about what might happen tomorrow if nothing is done today. By that two-part definition, the Bush policy certainly qualifies as a preventive-war policy. But does the adoption of that strategy of ‘preemption’ mark a total break with American tradition, or did earlier administrations, to one extent or another, also think in ‘preemptive’ terms? It turns out that the sort of thinking one finds in the Bush policy documents is not to be viewed as anomalous. Under Roosevelt and Truman, under Eisenhower and Kennedy, and even under Clinton in the 1990s, this kind of thinking came into play in a major way. Concerns about the future—about what might happen if nothing were done—weighed heavily on American policy during the period from 1941 through 1963 and beyond. That historical finding should not be too surprising, at least not to anyone who has tried to grapple with these issues on a theoretical level and who is familiar with what international relations theorists have had to say on the subject. For one of the main ideas in contemporary American international relations theory is that in a world not governed by supranational authority, states will do whatever they have to in order to provide for their own security. If that means taking aggressive action, then they will act aggressively, even for purely defensive purposes. 74 And the pressure to do so, the theorists go on to argue, is particularly strong when states worry about how the strategic balance is shifting and about what might happen if events are allowed to drift. 75 From that general point of view, the sort of thinking I have been talking about here comes across as natural—as a normal response to the pressures you find in a self-help system. However, that kind of approach, at least in its purest form, somewhat overstates the importance of those systemic forces. In reality, a tendency to think in preventive-war terms is not quite built into the basic structure of the system. People are instead drawn to this type of thinking only when a certain political judgment is made about the nature and manageability of the conflict at hand. The Germans, for example, began talking about the importance of having it out with the Russians before it was too late only after they had come to the conclusion 74 In modern times, this argument goes back to Hobbes, but today it figures prominently in the writings of a number of leading international relations theorists. See especially Robert Jervis, ‘Cooperation under the Security Dilemma’, World Politics, 30, no. 2 (January 1978); Kenneth Waltz, ‘The Origins of War in Neorealist Theory’, Journal of Interdisciplinary History, 18, no. 4 (Spring 1988), pp. 619–20; and John Mearsheimer, The Tragedy of Great Power Politics (New York: Norton, 2001), esp. pp. 3, 21, and 34. 75 See especially Stephen Van Evera, Causes of War: Power and the Roots of Conflict (Ithaca, NY: Cornell University Press, 1999), esp. ch. 4; and Dale Copeland, The Origins of Major War (Ithaca, NY: Cornell University Press, 2000).

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around 1912 that because of Russia’s Balkan policy, war with that country was probably unavoidable. 76 A preventive-war policy is thus based on a judgment about the future. But it is sometimes claimed that because no one can see with any certainty what the future holds, a preventive-war policy simply has to be ruled out. Our calculations about the future, the argument runs, are just too fragile to serve as the basis for such a warlike policy. 77 The problem with that argument is that no matter what course of action is chosen, that choice has to rest on a judgment about the future. Various alternative courses of action have to be weighed against each other, and the political leadership can make that assessment only by thinking about what is likely to happen if one or another policy is adopted. The issue is not whether policy choices should be made by trying to think about what is likely to happen in the future if the country goes down a particular road. The only real issue here is how good that analysis is—how careful and how well-informed those speculations are. To say that these are matters where judgment is called for is to admit that the judgment can go either way, depending on circumstances. This therefore is not an issue that should be dealt with by invoking hard-and-fast principles—by flatly asserting that a preventive-war policy is to be dismissed out of hand as ‘illegal and immoral’, or, on the other hand, by flatly asserting that international norms should count for nothing. The problem has to be approached in a more nuanced way. The goal is to strike a balance—to realize that in certain circumstances a very active policy might have to be considered, while recognizing that as a general rule the basic norms of the system need to be treated with respect. It is important to remember, in this context, that that is the way these issues have been dealt with in the past. No one got upset, during World War II, when the United States and Britain attacked French North Africa in November 1942, even though those territories belonged to France, by then a neutral power. The reason no one got upset was that that military operation was so directly related to the larger war, a war in which the most basic interests of America and Britain were on the line. No one got upset about the British attack on the French fleet at Mers-elKebir in July 1940. The British were afraid the fleet would fall into German hands, and acted, even though they were not at war with France and even though they could not know with any certainty what would happen if they took no action. But no one got upset, because people understood why it was so important for Britain to take no chances in this matter. And no one was outraged when Churchill, in his book about the origins of World War II, basically argued that the Western powers should have moved against Hitler early on, while it would have been relatively easy to do so. 78 Churchill was basically making a preventive-war argument, but 76 For the key document, see John C. G. Röhl, ‘Admiral von Müller and the Approach of War, 1911– 1914’, Historical Journal, 12, no. 4 (December 1969): esp. 661. 77 This, e.g. is what Schlesinger seems to argue in ‘The Immorality of Preemptive War’. 78 See Winston Churchill, The Gathering Storm (Boston, MA: Houghton Mifflin, 1948), esp. pp. 346–8 (pp. 309–11 in the Bantam paperback edition). Note also the ‘theme of the volume’: ‘How the English-speaking peoples, through their unwisdom, carelessness, and good nature allowed the wicked to rearm’—the clear implication being that the ‘wicked’ should not have been allowed to do so.

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the Nazi threat seemed so obvious in retrospect that what Churchill was saying seemed utterly unproblematic. In the case of the Cuban missile crisis, there was no hand-wringing at the time about the United States being willing, unilaterally if necessary, to take military action without prior UN authorization, even though no one thought a launch of the missiles was imminent. If the Kennedy policy was criticized at all, it was criticized for being too weak, and not just by right-wing Republicans. Senator J. William Fulbright, the Democrat from Arkansas who chaired the Senate Foreign Relations Committee, for example, told Kennedy to his face during the crisis that rather than go the blockade route, ‘it would be far better to launch an attack on Cuba.’ Fulbright, in fact, was in favor ‘of an invasion, and an all-out one, and as quickly as possible.’ 79 No one was outraged by the fact that Kennedy was willing, in the final analysis, to use force on this issue. The assumption was that the country could have pursued a much tougher policy if it had wanted to—that the country would do whatever it needed to do, and that military action was by no means to be ruled out as ‘illegal and immoral’. Why is it important to remember these things? Why is it so important to see this whole set of problems in historical perspective? The problems the world now has to deal with are very difficult, and we need to look for guidance wherever we can find it. We can get some guidance by understanding that these problems are not entirely new, and that people had to face similar problems in the past. By studying and thinking about how they were dealt with, we can develop and refine our own thinking about this whole cluster of issues. Historical study can serve as a sort of laboratory. By studying the past the right way, we can bring important conceptual issues into focus—and we have to do that in order to work out our thinking in this area, so that we can then bring that thinking to bear on questions of policy. But to use history in that way, we have to try to see American policy in the twentieth century for what it actually was. And that, unfortunately, is something that few people in American political life, left or right, seem particularly interested in doing. 79 Kennedy meeting with Congressional leadership, October 22, 1962, FRUS 1961–3, 11: 160–1 and May and Zelikow, Kennedy Tapes, pp. 271–2.

3 On Getting One’s Retaliation in First

1

Suzanne Uniacke

The witty advice that one should ‘get one’s retaliation in first’ has found momentous embodiment in the rhetoric of so-called preemptive and preventive selfdefense which has come to prominence following the terrorist attacks in the United States on September 11, 2001. 2 In this chapter, I provide a general, philosophical account of the use of harmful force in self-defense as a type of retaliation and argue that preemption, the use of harmful force for prevention, is not an act of self-defense. This point has obvious relevance for the terminology in which a policy of preventive war is properly presented, but its importance to moral and political discourse about this issue is not simply a matter of conceptual clarity. In many contexts, we regard preventive action as superior to allowing a threat to develop to a point where it needs to be forcibly resisted or repelled. Where human conflict is concerned, preventive measures are considered vastly morally preferable to using harmful defensive force, provided prevention can be achieved by legitimate means and with acceptable risk and cost. Within contemporary just war theory, fighting a defensive war is justified as a ‘last resort’ when reasonable efforts aimed at prevention of hostilities fail. This thinking invokes a strong presumption in favor of prevention as an alternative to the use of harmful force: prevention is a means of averting violent conflict. 3 The moral balance moves in the other direction, however, if the way of preventing a defensive war were to initiate violent conflict. The moral presumption in favor of prevention is in fact reversed where the means used for prevention would constitute aggressive force. While there is a strong moral presumption against the use of harmful aggressive force (even for 1 For helpful comments I am grateful to participants in the Workshop on Preemption and Preventive War, Leverhulme Project on the Changing Character of War, University of Oxford, June 19–21, 2005, and also to James Booth and Paul Gilbert at the University of Hull. The paper was supported by a research leave grant from the Arts and Humanities Research Council (UK). 2 Marc Trachtenberg argues that a commitment to preemptive and preventive military force was firmly established in US policy well before 2001. Marc Trachtenberg, ‘The Bush Strategy in Historical Perspective’, in James Wirtz and Jeffrey Larsen (eds), Nuclear Transformation: The New U.S. Nuclear Doctrine (New York: Palgrave, 2005). 3 This is evident, e.g. in the Report of the United Nations Secretary-General’s High-level Panel on Threats, Challenges, and Change, when it asks: ‘What happens if peaceful prevention fails? If none of the preventative measures so far described stop the descent into war and chaos?’ A More Secure World; Our Shared Responsibility (New York: United Nations, 2004), 3.

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self-protection), there is a right to use necessary and proportionate force in selfdefense against an immediate unjust threat. Moreover, the justification of the use of harmful force in self-defense is grounded in the type of act it is, a central feature of which is that it is directly retaliatory. The terminology of current political discourse that refers to preemptive, preventive, and anticipatory self-defense, often shifting between notions of defense, preemption, prevention, and protection, obfuscates some acutely relevant moral distinctions and presumptions. This gives such terminology a distinct rhetorical advantage in political debate. Philosophically informed discussion of this immensely important issue, however, ought to be more deeply critically aware than it would mostly appear to be.

3.1. RETALIATION AND SELF-DEFENSE Self-defense does not always involve retaliation. The intentional use of harmful force in self-defense can be a type of retaliation however, and this is highly significant for its justification. My explanation of why this is so will begin with a general analysis of retaliation. Before doing this, I must emphasize that ‘retaliation’ and ‘self-defense’ are not morally judgmental terms. The question of whether particular conduct is retaliation or self-defense is distinguishable from and prior to the question of whether that conduct is morally justified. The fact that that conduct is retaliation or self-defense can influence our moral assessment of it. Nevertheless, to characterize conduct as retaliation or self-defense does not itself imply a particular moral judgment. Some retaliatory conduct is morally permissible and some is not. The use of force in self-defense is justified under certain conditions and can be unjustified where these conditions are not fulfilled. 4

3.1.1. Retaliation Retaliation is responsive conduct; typically it is a reaction by someone to someone on account of something. In outlining central features of retaliation, I assume for the sake of argument that the actor (the one who retaliates) and also the object of retaliation (the one retaliated against) are morally responsible agents (either individuals or groups) and refer to both as persons. I also assume that retaliation is taken against conduct that has either been directed against the actor herself or at least that she has been on the receiving end of it, and that the object of retaliation is responsible for the conduct retaliated against. 5 4 e.g. the use of lethal force in self-defense is positively justified only against an unjust threat to one’s life or comparable interest. Contra Thomas Hobbes, Leviathan (Harmondsworth, UK: Penguin Books, 1974), 199. 5 These assumptions are not essential to retaliation but they enable me to focus on the chapter central concerns. Each of these assumptions would be open to broader and more critical interpretation on a fuller account of retaliation. I provide such an account in The Ethics of Retaliation (in preparation).

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We distinguish retaliation from other responsive conduct in virtue of two defining features: what retaliation is a response to, and the type of response it is. Retaliation is a response to being treated not as one wants to be treated. Treatment that is retaliated against is usually an identifiable incident or course of action that has cast or caused harm. 6 The notion of harm against which a person might retaliate is an inclusive one that encompasses injury or loss of some sort (e.g. physical injury or destruction of property), as well as insult (e.g. verbal abuse or a nasty review) and wrongs in the form of injustice or violation of rights (e.g. coercion or theft). Retaliation is a doubly normative concept in that it invokes a standard both in respect of what retaliation is a response to, and also in respect of what type of response it is: ‘retaliation’ refers to a hostile or adverse reaction to the imposition or infliction of harm. Moreover, the relationship between what retaliation is a response to and the type of response it is, is a conceptual one: retaliation involves a return of harm. Clear illustrations of this relationship are interpersonal ones in which A retaliates against B by casting harm against B in return for harm that B has cast against A. Since retaliation is responsive conduct, we might be tempted to contrast retaliation with aggression. In situations involving violent conflict we distinguish between someone launching an aggressive ‘first strike’, as opposed to retaliation by the person on the receiving end. A general contrast between retaliation and aggression could be misleading however, because retaliatory conduct can also be aggression in some contexts. We identify particular conduct as aggression with reference to a relevant norm that governs how persons might interfere with one another. Where the norm to which we appeal is a legal one, a retaliatory act could be aggression against other individuals, the community or the state where, for example, a private individual decides to avenge an injustice by taking the law into his own hands. Similarly, a state that retaliates against what it perceives as wrongful conduct against it can be engaged in aggression if in so acting it contravenes international law. While in some contexts retaliation can also be aggression, at the same time we distinguish acts of aggression from acts of self-defense. These relationships are relevant to my later discussion. Retaliatory conduct is perceived and intended by the actor as hostile or adverse in that it aims to cast and usually also to inflict harm against another person. In everyday discourse ‘retaliation’ often refers to a particular type of retaliation such as revenge. Nonetheless, ‘retaliation’ is a generic term that is applicable to a wide range of actions and their effects that meet the central conditions of being intended as a return of harm. It includes retaliatory speech as well as retaliatory actions. Retaliation can flow from emotions such as anger, fear, resentment or indignation, or it can be dispassionate, as it is in cases of retribution. Retaliation can be strategic or it can be nonstrategically motivated. Retaliation can be defensive, vindictive, or retributive; it can be used against the infliction of injuries or against the commission of wrongs or offenses. 6

I use the phrase ‘cast or caused harm’ since harm that is cast at someone does not always connect so as to cause harm. A missile might miss its target and explode in mid-air, for instance.

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Individual persons can engage in self-defense, and collectives such as states are said to act in self-defense when they suppress civil strife or wage defensive warfare against an external enemy. In explicating the general conditions under which selfdefense involves retaliatory force I, for the sake of argument, leave open the sense of the ‘self ’ who is being defended so as to include both individual persons and collective selves. 7 I also use the term ‘self-defense’ in a broad sense that refers to defense of the vital goods of life and physical integrity and security, and that can include defense of other people and might in some circumstances encompass defense of liberty or property. 8 We are not well accustomed to regarding the use of harmful force in self-defense as a type of retaliation. There are a number of reasons for this. It might be objected that the use of force in self-defense is not hostile conduct, since it aims simply to repel or resist a threat. It might also be maintained that ‘retaliation’ should always be used, as often it is, in a strictly backward-looking sense in which its rationale is always a return of harm for a past injury or wrong. Self-defense against a current attack is not retaliation in this sense even when it involves the intentional use of harmful force in striking back at an aggressor who has struck first. These two objections are not significant. The use of force in self-defense is hostile or adverse conduct when it is intended to cast or deliver harm against someone. 9 (This aim is instrumental. Harm is cast against someone in self-defense as a means of resisting or repelling a threat, as opposed to being, say, vindictive. 10 But retaliation can be instrumental.) A generic conception of retaliation is soundly based; it includes acts of self-defense that aim to cast or inflict harm against another person, where the normative context that occasions this conduct establishes that it is a hostile or adverse response to negative treatment. 7

For a discussion of the self of self-defense, see Neta C. Crawford, ch. 4 in this volume. Defense of liberty or property might be regarded as self -defense when a person’s life or physical security is at stake (e.g. a person who is kidnapped might legitimately fear for his life, a person’s life might depend upon retention of his food or his parachute). However, in other circumstances liberty can be defended for its own sake against a threat of subjugation or incarceration, or defended against such threats because of other goods that are aspects of self-development that liberty makes possible. Defense of property can also be motivated by various concerns other than self-defense, self-protection, or self-preservation, such as a desire to protect the property itself (especially where it has significant intrinsic, monetary, or sentimental value), a desire to keep one’s rightful possessions, or a desire to fulfil one’s obligations (e.g. as a custodian). 9 According to the ‘double effect’ justification that has its origins in Aquinas, an aggressor’s death is always an unintended (incidental) effect of the use of lethal force in self-defense. Nevertheless, even on that view someone who uses lethal force in self-defense intends to cast harm against another person. Further, the claim that homicide in self-defense is unintended killing need not maintain that a person who uses force in self-defense never intends to inflict harm. To maintain this would be highly implausible, since a person acting in self-defense typically intends to use the type and the degree of force necessary in the circumstances to resist or repel the aggressor. 10 Even where an actor believes that his defense will be unsuccessful, he can act in self-defense in trying to resist the threat against the odds. 8

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An objection to the very idea that self-defense can involve retaliation might be based on a particular contrast between the two concepts that can be relevant in a criminal trial where, for instance, a question arises about whether a householder who has shot an intruder in the back was engaged in retaliation as opposed to self-defense. 11 Along similar lines, we can ask whether a defendant’s use of grossly excessive force in repelling, for example, an unwelcome sexual advance was caused by a desire for retaliation, as opposed to a misjudgment (due to fear) about the limits of permissible self-defense in the circumstances. However, these legal contrasts do not show that the use of harmful force in self-defense cannot be a type of retaliation. The sense in which ‘retaliation’ is being contrasted with selfdefense in these legal contexts is not a generic one. Rather, it refers to a particular type of retaliation with a certain motive—revenge or vengeance—as opposed to self-defense. We could equally well ask whether a defendant’s use of force was selfdefense as opposed to revenge, or whether a defendant’s self-defensive conduct was affected to some extent by considerations of vengeance. At this point, it is also appropriate to revisit a contrast between retaliation and aggression outlined above (see p. 71), where we noted that retaliation can also constitute aggression in certain contexts. Retaliation is not always aggression of course, and commonly it is not. Significantly, retaliation can be contrasted with aggression when the context in which the retaliation occurs establishes that it is an act of self-defense against an unprovoked attack. In characterizing the use of harmful force in self-defense as a type of retaliation, I should reiterate that not all self-defense involves retaliation. Self-defense aims to resist or repel harm and this might be achieved by means other than a return of harm. Passive resistance might be regarded as a form of self-defense where, for example, individuals or a community refuse to comply with the dictates of an oppressive regime. However, passive resistance is not paradigmatically selfdefensive since ‘defense’ usually implies the use of force of some kind. (For this reason, ducking a threat by, e.g. moving out of the path of a missile, is an act of self-preservation or self-protection and not strictly speaking self-defense. An act of self-defense aims to ward off, resist or repel harm, not simply avoid it.) Force used in self-defense is not retaliatory where, for instance, it aims to repel or deflect an attack by means of an object such as a shield that is used as a barrier. 12 In taking precautionary action a person is not acting in self-defense. However, precautionary steps might involve, for example the acquisition of defensive weapons, or putting a barrier in place that would subsequently act as a defense if and when an attack occurs. Even in cases where force is used directly against a threat, self-defense can be nonretaliatory where a person harmlessly restrains an aggressor by confining or overpowering her. 11 A relatively recent English case attracted extensive media and public comment. After several break-ins at his isolated farmhouse, Tony Martin shot two teenage burglars, one fatally. He pleaded self-defense. Martin’s conviction in April 2000 for the murder of one of the boys, shot in the back, was later reduced to manslaughter on appeal after the introduction of evidence that Martin was suffering from paranoid personality disorder. 12 Unless the barrier is designed to deflect the harm back against the perpetrator.

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Although self-defense need not involve retaliation, the use of force in selfdefense can be and often is retaliatory when it involves a counterattack or an act of striking back at someone who has cast or caused harm. Moreover, these retaliatory acts are paradigm examples of self-defense. The basic condition under which selfdefense involves retaliation can be generalized as follows. An act of self-defense involves retaliation when it aims to resist or repel harm by return of force that casts harm against the perpetrator. A person, A, retaliates in self-defense against another person, B, when A aims to resist or repel the harm that B would inflict on A, by directing harm back at B (e.g. by returning B’s fire). Irrespective of whether A intends actually to harm B, A intends to cast harm at B, intending this as a return of harm that will resist or repel the harm that B would inflict. The conditions under which the use of force is retaliation, and the conditions under which a person can retaliate in self-defense, are important for the elucidation of both of these concepts and, consequently, for the ethical norms that govern these types of actions. These two sets of conditions have a highly significant bearing on issues of serious practical concern. They provide a particular insight into the highly contentious issue of the so-called ‘right of preemptive self-defense’ proclaimed by the US administration following the terrorist attacks in New York and Washington in 2001, and into the subsequent debate about the justification of a policy of preemptive and preventive self-defense.

3.3. SELF-DEFENSE AND PREEMPTION Debate since 2001 about the circumstances in which preemptive force can be regarded as self-defense, and about the justification of preemption and preventive war as questions of political ethics and international law has sometimes invoked the conditions expounded in 1840 by the US Secretary of State, Daniel Webster, who maintained that preemption (in the form of intrusion into the territory of another state) can be justified as an act of self-defense only in cases of imminent threat in which the actor can show ‘a necessity of that self-defense, instant, overwhelming, leaving no choice of means, no moment of deliberation’. 13 (These conditions are also applicable to the circumstances in which individual self-defense might include preemption.) The notion that self-defense can include the use of force against an imminent threat has a history that significantly predates Webster’s conditions, however. Natural law accounts of self-defense and traditional just war theory maintain that (legitimate) self-defense does not require that one be struck first. They allow that one can act in self-defense against an imminent attack by, for example, using force (including lethal force) against an enemy who takes up arms with the manifest intention of using them. 14 13 Daniel Webster, ‘Letter to Henry S. Fox, British Ambassador to the United States, 24 April, 1841’, in K. E. Shewmaker (ed.), The Papers of Daniel Webster: Diplomatic Papers, vol. 1 (1841–3), (Hanover, NH: University Press of New England, 1983), 62. 14 See, e.g. Hugo Grotius, The Rights of War and Peace, an abridged translation by William Whewell (Cambridge University Press, 1853), 61–8, esp. bk. II, ch. I., para. V, sec. 1 and 2.

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The particular focus of this section, and a central concern of the chapter, is to examine the conditions under which the use preemptive force might reasonably be regarded as self-defense and the relevance of retaliation to those conditions. Prior to paying direct attention to that issue, we need to address a fundamental challenge to the claim that acting in self-defense can include preemption. Preemption, it might be argued, is by definition neither self-defense nor retaliation, preemptive action being necessarily prior to the casting of harm against which a person might otherwise defend himself or retaliate. The legal theorist, George Fletcher, for instance, would appear to express something like this view in contrasting selfdefense with both preemption and retaliation as follows: ‘A pre-emptive strike against a feared aggressor is illegal force used too soon; and retaliation against a successful aggressor is illegal force used too late.’ 15 Above I adopted a generic sense of ‘retaliation’ that can include retaliation in self-defense. This is obviously distinguishable from the strictly backward looking sense of ‘retaliation’ that Fletcher invokes. Fletcher’s characterization of ‘preemption’ can also be contrasted with a recent trend in political ethics that would reserve the term ‘preemption’ for the use of force against an imminent threat, as opposed to ‘prevention’ that refers to the use of force against a threat that is (merely) possible or potential. However, a critical response to the claim that preemption cannot be self-defense or retaliation must acknowledge, as Fletcher’s remark suggests, that the central sense of preemption does refer to prevention of feared or anticipated harm prior to a stage at which counteraction can reasonably be regarded as self-defense or retaliation. Preemption in this central sense aims to prevent the development of a situation that would require self-defense. This is clearly the sense in which we would speak, for example, of sending someone a preemptive letter aimed at averting a possible misunderstanding; of preempting criticism by taking possible objections to one’s own position into account in a presentation; and of using various tactics in order to preempt a swing of support toward a rival candidate. We also speak about force as preemptive when it is used to avoid the need to act in self-defense. For example, lacking confidence in my ability to defend myself if attacked, I might preempt a feared attack by pulling the rug from under a potential aggressor, so to speak, before he has a chance to act against me or even to form an intention so to act. Consequently, I mostly use the term ‘preemption’ in this central sense in which it refers to the use of force for prevention and contrasts with self-defense. Later in this chapter, I address the very restricted (somewhat technical) sense of ‘preemption’ in which preemption of an imminent threat might reasonably be regarded as self-defense. 16

15

George Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998), 133. The senses of preemption and prevention that I invoke in this discussion are those of everyday discourse as applied to more formal ethical thinking about conflict and war. Hew Strachan, (ch. 1 in this volume) details the historical development of notions of military preemption and preventive war as they arose within particular institutional and political rationales of war. I take the restricted sense of preemption that I identify later in this chapter as akin to the sense in which, as Strachan explains, preemption was originally an operational, military concept whereby one party to a conflict took a 16

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Even if we have the central sense of preemption in mind, the claim that preemptive action cannot be self-defense or retaliation is overstated. Consider, for instance, that a preemptive strike in the course of war can be defensive. A person who has already been attacked might retaliate in self-defense in order to preempt further attack. (The US-led war against the Taliban and al-Qaeda in Afghanistan following the attacks of 9/11 was defended in terms of self-defense and a ‘right of retaliation’, presumably to preempt further such attacks.) Of greater significance for our discussion, the claim that by definition preemption cannot be self-defense or retaliation can also be contested at a deeper level that brings to the fore the relevance of retaliation to the conditions under which the use of preemptive force might reasonably be regarded as self-defense. These conditions depend not only on the circumstances of the preemption in question (as is widely recognized) but also, I argue below, on the conditions under which the use of harmful force in self-defense is retaliation.

3.4. THE SIGNIFICANCE OF THE STATE OF THE THREAT We distinguish self-defense from preemption in its central sense (prevention) with reference to the state of the threat against which force is used. The use of force in self-defense is directed against an actual, as opposed to a (merely) possible or potential threat. 17 This existential condition is often expressed in temporal terms, where self-defense is held to require a present threat such as an attack that has been mounted, as opposed to a future threat that is merely feared or anticipated. 18 In the quotation above, Fletcher invokes a temporal criterion in saying that a preemptive strike against a feared aggressor is force used ‘too soon’. Note, though, that Fletcher’s characterization of preemption against a feared aggressor (and also of retaliation against a successful aggressor) is also doubly evaluative: he says that a preemptive strike is ‘illegal force used too soon’. Whether Fletcher takes the distinction between self-defense as opposed to preemption to be necessarily evaluative, strategic offensive in the conduct of a war, as opposed to a notion that applied to a political decision to wage a preventive war. 17 More generally, defining the conditions under which x constitutes a threat to y can raise difficult philosophical issues, especially in relation to marginal and contested cases and highly unusual causal sequences. Nevertheless, for our purposes it is sufficient that we specify that a threat is an existing event or state of affairs that will, if not counteracted, make its object (the person threatened) worse off than she would otherwise have been. 18 Indeed, existential and temporal terminology is sometimes commixed in drawing pertinent contrasts. David Luban, e.g. refers to prevention of ‘immature or distant threats’. (David Luban, (ch. 4 in this volume, see p. 172). Consider also the following quotation from the Report of the United Nations High-level Panel on Threats, Challenges, and Change, op cit: ‘What happens if peaceful prevention fails? If none of the preventative measures so far described stop the descent into war and chaos? If distant threats do become imminent? Or if imminent threats become actual? Or if a non-imminent threat nonetheless becomes very real . . .’ (my emphases).

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there is a common tendency to use ‘self-defense’ as an evaluative term that implies justification. 19 Our immediate concern, however, is to identify the difference between the use of force in self-defense as opposed to preemption in its central sense (prevention), without prejudice as to whether or not either is justified. An essential difference between self-defense, as opposed to preemption in its central sense is that the latter occurs in relation to circumstances in which a threat is (merely) feared or anticipated, as opposed to actual, the aim of preemption being to prevent the development of an actual threat that would require selfdefense. This distinction is obviously temporal in that preemptive action occurs prior to a stage at which self-defense would be necessary. There are further, related reasons why it can be appropriate to express what is essentially an existential distinction in temporal terms. Possible or potential threats often develop into actual threats over a period; we speak of some circumstances as constituting an emerging threat, one that will, if unchecked, become an actual threat in due course. Force used in self-defense is directed at a threat which has reached a stage at which it might be resisted or repelled, as opposed to an earlier stage at which its development might have been prevented. Notwithstanding the relevance of temporality, the familiar reference to temporally distant harm can be a misleading way of identifying an instance of prevention, as opposed to a case of self-defense. This is because the phrase ‘temporally distant harm’ tends to elide a distinction between a future threat which might be prevented from becoming an actual threat, as opposed to an event or state of affairs that constitutes an actual threat of future harm against which a person might act in self-defense. A future threat consists in circumstances that would or could, if unchecked, develop into an actual threat. (We might so regard, e.g. the early stages of cumulative pollution of a water supply, or so regard a rival state’s interest in acquiring a nuclear capability which it claims is not intended as a basis for arms production.) A future threat is different from something that already constitutes a threat of future harm. If, for example, I were to set a device now that is programmed to kill people in five years’ time, what I do now would constitute an actual threat of future harm to those people. Significantly, if someone were to use force to stop me setting this delayed-action device, he could be acting in defense of those who would later be killed by it. There are a number of ways in which persons might be subjected to an actual threat of future harm, against which they might then act in self-defense. Consider three further examples. In the first case, Person A is stranded with the evil Person B, who declares his intention to kill A when A falls asleep. Knowing that he will be unable to resist sleep indefinitely, A uses force to disable B when he gets the chance. In the second example, D threatens to kill C unless C kills E. C then uses 19 This is appropriate where ‘self-defense’ is the name of a legal defense that acts as a justification for what would otherwise be illegal conduct. In everyday speech, however, as a defense of conduct that would otherwise be wrongful, ‘I acted in self-defense’ must be elliptical for ‘I acted in justified self-defense’.

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force against D in order to resist this duress. In the third example, F is lighting a fire that will engulf G should a wind spring up. G uses force against F to stop him lighting the fire. In the first of these three examples, the material harm with which A is threatened (being killed) is some time off its ‘delivery’. In the second example, the threat to C is conditional. In the third example, the threat to G is contingent. Nevertheless, A, C, and G are under actual, as opposed to (merely) possible or potential threats, and arguably each acts in self-defense. The view that A, C, and G act in self-defense rests on a critical interpretation of what it is to be under an actual threat, which includes the imposition of conditional and contingent threats and threats that will inflict material harm at a later time. According to this interpretation, the use of force in self-defense does not always require that material harm has been cast or is about to be inflicted. A disables B under what can be regarded as a ‘promissory’ threat: A’s use of force to preempt B’s strike is importantly different from the case of someone who preempts a threat by, say, preventing a (merely) potential aggressor from obtaining weapons. Whether we can reasonably regard A, C, and G as acting in self-defense depends, further, on whether in using force they are resisting or repelling an actual threat. 20 In this regard, the clearest instance might seem to be G who uses force on F directly to resist the imposition of an immediate contingent threat. However, earlier I alluded to the possibility that a person might retaliate against a wrong or an offense, whether it also brings material harm. (A person might, for example, retaliate against coercion even if the effects of the coercion are actually beneficial.) We need also to take this into consideration in identifying what a person might resist or repel in self-defense. In using force against D, C is resisting the duress that D has put her under; in so doing C also repels D’s violation of her rights together with a conditional threat of grave material injury. As this example shows, an act of self-defense might directly resist or repel the imposition or infliction of a wrong in the form of rights violation, where the interest the person is thereby defending is one that is vital to self -preservation. Life, bodily integrity, and physical security are obviously among such interests. A person might also act in self-defense in resisting the violation of his freedom in some circumstances; in an extreme case, he might act in self-defense in resisting kidnap or enslavement. 21

20 If A were to have known that B’s declaration of intention was imminent, and at that point were A to have used force against B in order to prevent B’s uttering his threat, would A have been acting in self-defense? I think that the answer is no. This is because A’s forcible preemption of B’s imminent (verbal) threat insufficiently resembles an act of resisting or repelling a threat of harm, as opposed to preventing the declaration of an intention to deliver it. 21 At the same time, we must recognize that a person can use force to resist the violation of her rights where the interest that she thereby defends is outside the scope of self -defense. For example, someone might forcibly resist the violation of her privacy, or the appropriation of her work, or a wrongful attack on her reputation. Defense of interests that are protected by one’s rights is not always self -defense. Where it is not, the use of force in defense of the relevant interests might be justified nonetheless.

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3.5. THE RELEVANCE OF RETALIATION In paradigm instances of self-defense, the threat that is resisted or repelled is an attack that has been launched. Nonetheless, the view that in the above three examples, Persons A, C, and G act in self-defense preserves and underlines an important conceptual connection between the use of harmful force in self-defense and retaliation. The use of force in self-defense requires an identifiable threat that can be resisted or repelled, and against which it is possible to retaliate. (I might retaliate against someone’s drawing a gun on me, e.g. even if he does not fire.) One can retaliate against a current or past threat by force or by counterthreat, but one cannot retaliate against a threat that is merely possible or probable. (This is why the advice about ‘getting one’s retaliation in first’ is a joke. Like ‘anticipatory retaliation’, the phrase ‘anticipatory self-defense’ is a contradiction in terms. Prior to an actual threat one can of course take steps, such as obtaining or aiming counterstrike weapons that anticipate retaliation in self-defense.) As an act of directly resisting or repelling a threat, the use of harmful force in self-defense is essentially retaliatory; and it is the retaliatory nature of the use of harmful force in self-defense that is conceptually problematic for the claim that preemption can be self-defense. ‘Resisting’ and ‘repelling’ (a threat) are responsive terms. In the case of self-defense they refer to a forceful reaction against a threat; they imply the forcible warding off of harm that has been cast or is being imposed. Self-defense is a far more limited notion than preemption, prevention, and self-protection. (The latter notions can include aggression, for instance.) Thus, harmful force that meets Webster’s conditions can be regarded as preemption as opposed to self-defense in that it does not strictly speaking resist or repel a harm that has been cast or is being imposed. Nevertheless, fulfillment of Webster’s conditions is characteristic of the use of force in self-defense, as opposed to preemption in its central sense (prevention). This both makes Webster’s cases noncentral instances of preemption and suggests that they might reasonably be regarded as self-defense.

3.6. CAN PREEMPTIVE FORCE BE SELF-DEFENSE? The use of force for preemption can reasonably be called an act of self-defense only if it approximates very closely to the conditions under which force is used in self-defense. As previously emphasized, force used in self-defense aims to resist or repel harm; force is directed against another person in self-defense only if that person poses an actual, as opposed to a (merely) possible or potential threat. For convenience, I follow convention and refer to the object of an act of self-defense as an aggressor. 22 There is, then, the question of the point at which a person who 22

Force can be used in self-defense against persons who are not strictly speaking aggressors. (I discuss this in Suzanne Uniacke, Permissible Killing: The Self-Defense Justification of Homicide (Cambridge:

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poses a (merely) possible or a potential threat, and hence is a (merely) possible or a potential aggressor, becomes an actual aggressor. This can be difficult to identify and open to dispute in the case of emerging or cumulative threats. It can also be genuinely difficult to discern in some practical contexts. (The menacinglooking stranger who approaches me might actually be harmless. Even if he has malevolent intentions, he might not go through with them. If a known adversary takes up a gun and waves it in my direction, how do I know that he intends to fire it as opposed merely to show off?) Nevertheless, a person who possesses the means to conduct an attack and who intends to do so is not an aggressor until he acts on the intention in some way. The phrase ‘in some way’ is deliberately imprecise at this very general level, since the activity in virtue of which a person becomes an actual aggressor will depend on the evaluative norms which apply to his conduct toward other persons in the particular context in which he acts. (I return to this important point.) These norms generally allow, however, that someone who, for example, takes up arms with a clear intention of using them can be an aggressor before actually striking a blow or firing a shot and, consequently, that a person thus threatened can act in self-defense in using force against him. Someone who uses preemptive force in this very restricted sense, in response to an attack that is clearly imminent, can reasonably be regarded as acting in self-defense. An important implication of the preceding discussion is that an act of striking before one is struck can reasonably be regarded as self-defense only if it approximates closely to an act of retaliation, a return of harm. This is why the imminence of the attack being preempted is significant to the representation of restricted instances of preemption as self-defense. Preemption that can be regarded as selfdefense must aim to stop harm that is about to be cast, by casting harm ‘back’ at someone who can reasonably be regarded as an actual aggressor. Outside of these conditions, the use of preemptive (preventive) force against a (merely) possible or potential threat is not an act of self-defense. A person acting in self-defense aims to prevent the infliction or imposition of a harm or a wrong; he does so by resisting or repelling an actual, or under certain conditions an imminent threat. In contrast, preventive force aims to prevent a possible or potential threat from becoming an actual threat, by means of disabling a possible or potential aggressor. Clearly, if such prevention succeeds, the use of force in self-defense will be unnecessary. 23

Cambridge University Press, 1994), 160–72.) However, the relevant qualifications are not pertinent to this discussion. 23 Once the use of force in self-defense becomes necessary, it not always successful. Indeed this is the point made in recent purported justifications of a preventive war policy. Once threats posed by weapons of mass destruction become imminent or actual, so it is claimed, they are ‘out of control’ so that use of defensive force will be ‘too late’. (‘If we wait to defend ourselves, defense will be ineffective.’) Such arguments often present the available alternatives as a dichotomy of extremes, whereby a nation fearing a threat can either adopt a policy of using force early on to prevent the development of the feared threat, or else allow the development of a situation that is ‘totally out of control’ or ‘irretrievable’.

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3.7. PREEMPTION AND ‘THE SELF-DEFENSE JUSTIFICATION’ Some contemporary defenses of preemptive force tend to slide uncritically from an evaluative judgment that preemption can come within the self-defense justification of the use of force, to a conceptual claim that preemption is self-defense. Arguments that go in this direction suppress the moral relevance of the type of act that an act of self-defense is. More specifically, as I argue in this section, they ignore the significance of retaliation to the justification of the use of harmful force in self-defense. The fact that harmful force is used in self-defense is insufficient to justify it. Nevertheless, the fact that self-defensive force is used against an actual threat is directly relevant to fulfillment of two conditions that are widely regarded as necessary (although not jointly sufficient) for its justification. The first of these is an evidentiary condition that requires the actor to believe on reasonable grounds that the threat is real, as opposed to (merely) perceived. 24 Being subjected to an attack can provide the actor with clear evidence for this belief. The second condition requires that force used in self-defense is necessary to avoid the harm with which the actor is threatened. 25 The fact that an attack has been mounted usually greatly narrows realistic options for avoidance by nonviolent means such as negotiation, retreat, or calling upon higher authorities (such as the police or the UN), especially where the threatened harm is grave. Both of these conditions can also be said to be necessary to any justification of preemptive or preventive force, making preemption in its central sense usually more difficult to justify than self-defense. Where a threat is (merely) feared or anticipated there is greater scope for uncertainty and for mistaken belief on the actor’s part both about a possible or potential aggressor’s intentions and capabilities, and also about whether apparently hostile developments will, if unchecked, escalate to a point where self-defense would be necessary. With a feared or an anticipated, as opposed to an actual threat there is usually also greater scope for the pursuit of alternatives for avoidance other than a resort to harmful force. 24 Reasonable grounds must be relative to the circumstances in which the actor is placed. A person who is confronted by an apparently threatening situation cannot reasonably be expected to make the kind of careful assessment of the facts that would be appropriate under less pressured or anxious conditions. (For this reason, traditional natural law accounts of permissible self-defense admit a certain latitude of judgment while emphasizing that ‘mere fear’ does not give us a right to use force for prevention.) Nevertheless, the reasonableness of the actor’s belief that she is under immediate threat requires the exercise of judgment that is consistent with an appropriately measured view in the circumstances. A person who acts rashly, for instance, and uses force against someone whose conduct is obviously harmless, does not act with justification even if her belief that she is being attacked is honestly held. 25 The term ‘last resort’ is frequently invoked, but evaluative considerations of risk and cost are relevant to whether the force used is necessary. For instance, nonviolent means of self-defense, or escape, might be possible in some circumstances that would leave the actor unreasonably vulnerable. Some interests we might be entitled to stand and defend with harmful force if necessary, as opposed to giving way. Nevertheless, a person is not justified in, say, shooting an attacker in the head if he can easily escape by pushing him away.

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Nevertheless, one might argue a case of preemption in its central sense (prevention) that addresses justificatory conditions of reasonable belief and necessary force. A person could have good grounds for anticipating a threat against which, should it eventuate, she would be unable successfully to defend herself. Moreover, she could now be in a position to take preventive measures that require the use of harmful force against someone who is presently a (merely) possible or potential aggressor. Note, however, that in a case of an anticipated as opposed to an actual threat, the condition of necessary force (for prevention) is a contingent one. And this is very revealing, because as applied to a case of prevention, two further conditions of legitimate self-defense must also be rendered contingent. The use of harmful force in self-defense is justified only against an unjust threat; but in a case of prevention, the analogous condition could require only that a (merely) possible or potential threat would be an unjust threat were it to eventuate. The use of harmful force in self-defense is justified only if the harm cast against an aggressor is proportionate to the harm he threatens; 26 but the analogous condition for prevention could require only that the harm cast would be proportionate to the anticipated threat were it to be an actual threat. 27 A justification of the use of harmful force for prevention would in effect be a case for justified aggression. As such, it lacks the definitive normative context of the legitimate use of harmful force in self-defense, namely that of retaliatory force that aims to resist or repel an actual unjust threat. This particular retaliatory context has two interconnected aspects that underpin the moral justification of the use of harmful force in self-defense. The first is that there is a right of self-defense; that is to say, the use of necessary and proportionate force in directly resisting or repelling the infliction or imposition of an otherwise irreparable injustice is something that we are positively morally entitled to do. The second aspect is that an unjust aggressor against whom necessary and proportionate force is used in self-defense is not wronged; that is to say, even if he is intentionally harmed by such force, he is not thereby treated unjustly. Traditional natural law accounts of self-defense are right in maintaining that ‘mere fear’ does not give one a right to use force for prevention. The right of self-defense is grounded in the fact that it is an act of directly resisting or repelling unjust harm; moreover, an unjust aggressor against whom force is used in self-defense no longer has the moral immunity that he would otherwise have against harmful interference. 28 These are dual aspects of the right of individual self-defense. I should draw attention here to the fact that in 26

The self-defense conditions of necessary and proportionate force are often conflated, especially in cases of so-called excessive defense. However, force that is necessary in the circumstances to repel a particular threat can be unjustified if the harm it would inflict would be disproportionate to the harm with which the self-defending actor is threatened. If, e.g. circumstances really are such that the only way I can prevent you from stepping on my toe is to push you off a cliff to your death, this would be disproportionate. 27 This assumes, as I think it must, that for a justification of prevention, the force used would need to be proportionate to the anticipated threat that it is intended to prevent, and not to the existing circumstances. 28 I argue more fully for this analysis of the morality of self-defense in Uniacke (1994), op. cit.

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leaving open the sense of the ‘self ’ being defended so as to include both individual and collective selves, I am also assuming for the sake of argument the conventional view that there is a parallel right of national self-defense. 29 Not all retaliation is directed against aggression, and not all retaliation is justified. Nevertheless, a retaliatory context is highly significant to the moral justification of using harmful force directly to resist or repel an unjust threat. The relevance of this particular normative context to the justification of self-defense represents a far deeper challenge to the justification of the use of harmful force for prevention than do the demands of the four conditions outlined above—unjust threat, reasonable belief, necessary force, and proportionate harm—suitably modified so as to be applicable to cases of anticipated, as opposed to actual threat. The use of harmful force against someone who is (merely) a possible or potential unjust aggressor could at best be a ‘lesser-of-evils’ justification, as opposed to the exercise of a right or positive entitlement as it is in the case of self-defense. There is no moral presumption, let alone positive moral entitlement to use harmful force for prevention against someone who does not actually pose an unjust threat. Having emphasized the significance of a particular retaliatory context to the right of self-defense I have yet to address two difficult closely related issues raised in earlier discussion. The first concerns the norms that are relevant to determining whether particular force is aggression, as opposed to self-defensive retaliation. The second is what sort of activity constitutes an actual, as opposed to a (merely) possible or potential unjust threat. These issues are obviously crucial to identifying situations in which the use of force can be regarded as legitimate selfdefense. Although too complex for a comprehensive analysis here, these issues come together in the context of self-defense because although retaliation can be aggression in some normative contexts, retaliation is not aggression when it is a genuinely self-defensive response to an unprovoked threat. Broadly speaking, aggression is the beginning of a quarrel or war. Whether particular conduct such as the use of harmful force is aggression depends on the normative context in which it occurs. 30 This means that in classifying conduct as aggression we appeal to a norm or standard of conduct with which people can be expected to comply. The basis of such expectation might be evaluative and appeal to what we morally expect of someone in particular circumstances (e.g. we expect people to accept the decisions of others in many contexts, preferably with good grace). However, there are various standards against which conduct can be aggression, and in addition to moral norms these standards include legal and institutional codes of conduct as well as social and other types of conventions and norms that are established by habit. There are well-established ‘acts of aggression’, 29 For critical discussion of whether there is a right of national self-defense, see Richard Norman, Ethics, Killing and War (Cambridge: Cambridge University Press, 1995) and David Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002). 30 Since in contemporary philosophical writing ‘normative’ is frequently used to mean ‘evaluative’, it is worth saying that just as the characterization of an action as retaliation or self-defense does not itself amount to an ethical evaluation of it, so too the ethics of an act of aggression can be an open question.

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the most obvious being the launching of an unprovoked attack. However, in some contexts conduct can be aggression because it alters the nature of an existing conflict, for example by escalating a verbal dispute to the level of physical violence. 31 Whatever standard of conduct is invoked, a person whose conduct is aggression according to that standard must do something in virtue of which he violates that standard and becomes an actual, as opposed to a (merely) possible or potential aggressor. This means that a person’s simply having the means ‘suddenly and fully’ to become a serious threat to someone else is insufficient to establish that he is an actual aggressor. (Any of my neighbors, for example, probably has the wherewithal in his garden shed to set my house ablaze while I sleep.) The second issue concerns what constitutes an actual unjust threat. The use of harmful force in self-defense requires an identifiable threat against which it is possible to retaliate. The imminence of the infliction of material harm, or of a strike in the case of preemption in Webster’s restricted sense, is a sufficient condition of actual threat (although not of unjust threat). I have maintained above that the notion of actual threat relevant to self-defense can also include delayed action, conditional and contingent threats, as well as the violation of rights that protect interests essential to the self. In order for one person to be an unjust threat to another, her conduct must also contravene a standard of what it is (morally or legally) permissible for her to do such that her conduct infringes the other person’s rights. This requirement of rights violation means that, for instance, someone is not an unjust threat to another person provided only that her conduct toward that other person is wrongful. (I might, for example, insist on my rights against another person in circumstances in which I ought to act benevolently and waive those rights. I can thus act wrongfully toward another person by a failure of benevolence, without thereby constituting an unjust threat to her.) This requirement also means that even if, as some commentators maintain, the conditions of what constitutes an actual threat can be significantly different for collective entities such as states, as opposed to individual persons, the ‘mere existence’ of something (an alien culture, for instance) cannot be an unjust threat against which one might legitimately use harmful force in self-defense, unless its very existence constitutes a violation of one’s moral or legal rights. In any moral, legal, or political context where the use of harmful force against others might arise, the norms that are relevant in that context to determining what constitutes aggression and an actual threat, and to determining when any such threat is unjust, must be carefully explained and critically defended. These norms can be sensitive to changing empirical circumstances to some extent. (For example, my encroaching on your property without your permission can be aggression, but if I routinely walk across your property and seeing this you raise no objection, 31 This point addresses a possible argument that the use of force for preemption is not aggression where, for example, it is also a response to being taunted. One can forcibly retaliate against a verbal taunt, as is well recognized by the criminal law defense of provocation. However, the escalation of a verbal conflict to the level of violence, although it can be retaliation, also constitutes aggression. If Person A insults B, and B reacts violently against A, A could act in self-defense against B. (Whether B or A would have a legal defense for their respective reactions are further questions.)

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it can be aggression on your part suddenly one day to warn me off). In no context, however, can the specification of the relevant norms be a purely subjective matter, dependent only on the perception and evaluation of the interested parties in any instance where a person might use harmful force on others for the purposes of self-protection.

3.8. REJECTING ‘PREEMPTIVE AND PREVENTIVE SELF-DEFENSE’ Even though under Webster’s conditions it makes sense to say, ‘I acted in selfdefense; he was about to strike me’, it is important to recognize that the use of force against an imminent threat represents a restricted, as opposed to the central sense of preemption. It is also vital in moral and political argument that morally relevant shifts of meaning not be disguised and that moves of conceptual and evaluative significance not be elided. For this reason, it is always preferable to speak in explicit terms of preemptive action in self-defense against an imminent threat, than to use the opaque contraction ‘preemptive self-defense’. The terminology of ‘preventive self-defense’ should be rejected. While preemption might be reasonably regarded as self-defense under Webster’s strict conditions, the use of the term ‘self-defense’ to characterize aggressive acts for the purpose of prevention is a move too far. 32 The use of force to prevent a (merely) possible or potential threat from developing into an actual threat (e.g. by disabling someone with whom one has a disagreement or dismantling her weapons), is not an act of self-defense on the two related grounds outlined above. It does not aim to resist or repel, as opposed to prevent the development of an imminent or actual threat; and the person against whom force is directed is not (yet) an aggressor: she is, rather, prevented from becoming one. The claim that in twenty-first century political affairs what constitutes an actual or imminent threat must take into account the capacity of WMD to be used without warning is a legitimate one. Nevertheless, there remains a valid and morally important distinction between using force in circumstances that can plausibly be said to pose an actual or imminent threat, as opposed to the use of force to prevent those circumstances from developing. In public discussion following the US-led coalition’s invasion of Iraq in 2003, many of those who have subsequently advocated the justifiability of preventive, as opposed to preemptive force in Webster’s sense, maintain that preventive force can be used in self-defense. Here we can ask why it is so important to some of the advocates of a preventive-war policy to misrepresent aggressive prevention as self-defense, rather than straightforwardly to defend what they really think, namely that the use of aggressive force early on to prevent the development of 32

The role of the restricted sense of ‘preemption’ within traditional just war theory has led some writers to refer to preemption in this restricted sense as the traditional sense of the term.

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an actual threat can be justified in certain circumstances. 33 This position typically maintains something vastly more far-reaching than a ‘right of preemptive selfdefense’, namely a ‘right of self-protection’ that encompasses the use of aggressive force under certain conditions. The argument that the use of preventive force is justified against terrorists and so-called rogue states who might acquire WMD that can be deployed without warning is properly seen as an alternative to the ‘self-defense justification’ of warfare, not as an extension or development of that justification. 34 Allen Buchanan has argued that what he calls the norm of self-defense can be extended to include the use of force for prevention. In so arguing, he takes the traditional ‘self-defense norm’ of justified war to be confined to actual or imminent attack. 35 (This may well be how this norm has come to be construed in contemporary just war thinking, but traditional just war theory is not as restrictive as that.) Buchanan maintains that this self-defense norm can legitimately be extended to include the use of force for prevention, since it can be permissible to use force in self-defense against an enemy whose wrongful conduct subjects you to constant risk of grave harm. What Buchanan takes to be the traditional norm of just war theory is, however, significantly narrower than the norm that governs self-defense more generally and the circumstances in which individual persons can reasonably be regarded as acting in self-defense. I have argued above that a person who uses force to resist or repel a wrong (such as coercion) that is actually being imposed, and in so doing defends a vital interest (such as life), acts in self-defense as opposed to prevention. In such cases, in using harmful force to prevent a strike, a person can be defending herself against an existing unjust threat, namely, an actual violation of her rights. 36 Wrongful conduct that subjects a person to constant risk 33 Some purported justifications of preventive war do explicitly defend a view that the traditional justifications of deterrence and defense are now obsolete, given the factual conditions of ‘new wars’ which include the use of biological weapons and the role of nonstate actors. 34 The concept of self-defense cannot plausibly be ‘redeveloped’ to encompass aggression, even for the purposes of self-protection. The term ‘preventive self-defense’ currently canvassed by some advocates of preventive war is nonsense. (All self-defense aims at prevention. But self-protective action that aims at prevention by aggressive means is not self-defense.) Neta C. Crawford, however, sheds a different light on the issue in suggesting that a central aspect of the position of those who appeal to the changed nature of war as a justification of preventive force amounts to the claim that the threat posed by ‘new adversaries’ (terrorists and rogue states) is immanent (ever present). (Neta Crawford, ‘The Justice of Preemption and Preventative War Doctrines’, in Mark Evans (ed.), Just War Theory Revisited (University of Edinburgh Press, 2005). Now, it is possible to act in self-defense against an immanent threat where, for example, in the context of ongoing hostilities there is a pause (as opposed to an agreed cessation) in the fighting. In such circumstances one party might reasonably regard the threat posed by the other side as immanent, and act against it in self-defense given the opportunity. It might also be possible to act in self-defense against an immanent threat posed by a serial aggressor who engages in intermittent attacks, at a time when he is, say, asleep. The existence of an established and ongoing threat is crucial to the characterization of the use of force as self-defense in these contexts. 35 Allen Buchanan, ‘Institutionalising the Just War’, Philosophy and Public Affairs, 34.1 (Winter 2006), 2–38. 36 In order for such conduct to be self-defense, the unjust threat need not be intentionally imposed. It might be due to negligence, for instance.

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of grave harm can constitute an unjust threat to that person if that conduct violates her rights. Whether what Buchanan takes to be the self-defense justification of waging war should accommodate this more inclusive notion of self-defense is a substantive ethical and political issue, as Buchanan says. In my opinion, Buchanan’s overall argument for this position is marred by the extent to which he represents the purpose of the jus ad bellum norm of just war theory as principally a means of ameliorating the risks of war—risks which, Buchanan goes on to argue, could in some contexts be ameliorated in other ways. The jus ad bellum condition of just cause is, however, a justificatory condition of a different order than the requirements of necessary and proportionate force. These two latter conditions act as moral constraints on waging war in a context in which there is an existing right to wage war. Within just war theory, the principal ground of a right to wage war has come to be regarded as that of self-defense against an unjust threat. What Buchanan refers to as the highly restrictive traditional just war norm can, thus, be seen as highly restrictive in two distinguishable respects. One of these respects—that just war is a response to an actual or imminent (unjust) attack— might, as Buchanan argues, be regarded as contingent and dependent on existing institutional and empirical conditions. The second respect in which the just war norm is highly restrictive, however, is essential to the norm: it requires that waging war has a just cause, such as its being the exercise of a right of self-defense. The existence of a right, a positive entitlement to act in self-defense depends crucially on normative context. Specifically, it depends on a context in which a person is subject to an unjust threat. What a right of self-defense then permits one to do in self-defense can depend on the actual circumstances and vary with those circumstances; the right of self-defense is in that respect contingent in its specification. In particular, as Buchanan notes, force that would be necessary to resist or repel an unjust threat in some situations would be unnecessary, and for that reason unjustified in others. The focus of Buchanan’s discussion tends, however, to sideline the crucial moral relevance of the retaliatory nature of the use of harmful force in self-defense to the justification of the use of such force. There is no general right, possessed by individuals or by nations, to use harmful force on others for the purposes of self-protection. 37 If we take the analogy between individual and national self-defense seriously, as I do here for argument’s sake, the central point of the restrictive norm of just war theory is that a right to use harmful force in self-defense is a right directly to resist or repel an unjust threat. Buchanan’s is a well-motivated attempt to extend the scope of (what he takes to be) the traditional self-defense norm of just war theory to include what might legitimately also be regarded as self-defense. By contrast, a large part of the explanation of the language of ‘preventive self-defense’ in recent political and public discourse is the perceived need to maintain that military force that is aimed at prevention is not aggression because it is consistent with the tenets of international 37

The use of such force might be excusable in some circumstances, or it might admit of a ‘lesser evil’ justification. The rights of the unoffending person or nation would be contravened, nonetheless.

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law that govern the conditions of justified war. The UN Charter explicitly recognizes only two exceptions to its prohibition of the use of force by any state against the territorial integrity or political independence of another state. One exception is the enforcement of international law under the auspices of the UN itself. The other exception is national defense. International legalities aside, such very public and far-reaching activities as waging war against or within another state also need to be defended both domestically and internationally in terms of a justification of widespread acceptance. The currently dominant approach to such justification is the just war theory, which in its modern formulations emphasizes national defense as the principal justification for waging war. These are certainly important influences behind the rhetoric of a ‘right to preventive self-defense’. But at a deeper level, an important motivation for the misrepresentation of aggressive, preventive force as self-defense is surely also the implicit moral advantage of characterizing harmful interference with a perceived enemy in retaliatory terminology, by representing it as a response to an actual threat of harm. It is possible to mount a defense of the use of aggressive force for prevention under certain conditions. (Whether convincingly so is another matter.) But these conditions will nonetheless lack a considerable justificatory advantage that a retaliatory context—one that characterizes the use of force as a return of harm—can provide. The justificatory advantage of the language of self-defense is not simply rhetorical. The particular retaliatory context of self-defense implies fulfillment of important justificatory conditions of the use of force against another person, namely that he is an aggressor who poses an actual threat. More fundamentally, this particular retaliatory context also affects the moral presumptions that shape the justification of the use of harmful force against others. The fact that force is used directly to resist or repel a threat is itself morally significant. It is highly relevant to the right of self-defense that the use of harmful force in self-defense directly repels or resists the infliction of an (otherwise unavoidable) irreparable injustice. For this reason, in explaining the tendency of some advocates of preventive war to misrepresent it as the use of force in self-defense, it is insufficient that we point out that the evidentiary and factual circumstances in which self-protection or self-preservation could justify the use of aggressive force against others are more difficult to establish than are the circumstances in which retaliation in selfdefense is justified. The ethical significance of the distinction between aggressive, as opposed to defensive force is not merely conceptual. The appropriation of the language of self-defense has a deep resonance in ethical discussion because the use of aggressive force is subject to different, more stringent ethical norms than is the use of retaliatory force in self-defense.

4 The False Promise of Preventive War: The ‘New Security Consensus’ and a More Insecure World Neta C. Crawford1

No one ought to wait to be struck unless he is a fool. One ought to provide not only against an Offense which is being committed, but also against one which may possibly be committed. Force must be repelled and kept aloof by force. Alberico Gentili In our globalized world, the threats we face are interconnected. . . . On this interconnectedness of threats we must found a new security consensus, the first article of which must be that all are entitled to freedom from fear, and that whatever threatens one threatens all. Once we understand this, we have no choice but to tackle the whole range of threats. Kofi Annan

The leaders of imperial Rome felt both tremendously powerful and deeply insecure; preventive war was an important element of the Roman foreign policy repertoire. Roman wars grew out of the self-confidence of imperial hubris and the fear that any unmet challenge to their authority, anything less than dutiful compliance and submission, would lead to an unraveling of their position. Their conquests were both perpetual and brutal. Perhaps most famous was the total destruction of Carthage in 146 , after a two year siege. 2 Most of the city’s at least 500,000 people were slaughtered, the rest were sold into slavery after 1 The Paper reproduced in this chapter was prepared for the Workshop on Preemption and Preventive War, Oxford’s Leverhulme Program on the Changing Character of War, June 19–21, 2005 at Oxford University. I thank Catherine S. Manegold, Henry Shue, and C. A. J. (Tony) Coady; Catherine listened and talked, Henry questioned and encouraged and Tony, as well as the other workshop participants, gave perceptive responses to the first draft to which I have responded. 2 The Romans had at first demanded hostages from Carthage; after the Carthaginians complied, Rome demanded that all arms be surrendered. After all arms were surrendered, Rome demanded that all Carthaginians leave their city. At this juncture, Carthage decided to resist and Rome laid siege for two years. After finally succeeding in breaching the city walls, the Roman commander proceeded to destroy Carthage.

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the city was burned, and according to legend, the ground was sown with salt. The siege and destruction of Carthage was a preventive war, undertaken out of the fear that the North African city’s growing prosperity would allow it to challenge Rome at some future point. Carthage was only one of Rome’s preventive wars during that period, which included the destruction of Corinth in Greece a few months later and the destruction of Numantia in Spain in 133. During the next centuries, internal and external security were inextricably linked in the minds of imperial Roman leaders: if the rest of the world was insecure, Rome was threatened; if Rome was secure so was the world. There was no difference between the interests of Rome and the world beyond it; the Roman self to be defended was unlimited, and expansion or at least domination was necessary to preserve the self. The rationale for expansion is succinctly expressed in the Roman Lex Rhodia: ‘the order of the world rests upon the tranquility of the Roman empire.’ 3 While President Bush has said that ‘America has no empire to extend or utopia to establish’, the United States has claimed the Roman imperial prerogative of preemption and preventive war. 4 The goal is security; the strategy is preventive war, the maintenance of American military supremacy, and democratization through regime change. The United States conducted a preventive war against Iraq in 2003 on the arguments that Iraqi WMD posed a future threat and that democratization of the Middle East would be sparked by the democratization of Iraq. 5 In arguing for war against Iraq, like the Romans, the Bush administration has equated US security with global security: ‘The safety of the American people depends on ending this direct and growing threat. Acting against the danger will also contribute to the long term safety and stability of our world.’ 6 And more expansively, President Bush told the American Enterprise Institute on the eve of war with Iraq that, ‘We meet here during a crucial period in the history of our nation and of the civilized world. Part of that history was written by others; the rest will be written by us.’ 7 This arrogation of imperial authority and authorship was not confined to the President. One senior adviser to President Bush told journalist Ron Susskind, ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out.We’re history’s actors . . . and you, all of you, will be left to just study what 3 Quoted in Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–1800 (New Haven, CT: Yale University Press, 1995), 50. 4 President Bush Graduation Speech at Graduation Exercise of the United States Military Academy West Point, New York, June 1, 2002. Hereafter, Bush at West Point. 5 The designation of the Iraq war as preventive is debatable. The Bush administration argued that the war was both enforcement of UN resolutions for Iraq to disarm, and prevention of Iraq acquiring weapons of mass destruction. The administration also framed the war as humanitarian intervention and democracy promotion. 6 President Bush, ‘President Discusses the Future of Iraq’, at the American Enterprise Institute, February 26, 2003 at www.whitehouse.gov/news/releases/2003/02/20030226-11.html 7 Bush, ‘President Discusses the Future of Iraq’.

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we do.’ 8 Or as Dick Cheney argued, the United States ought ‘to shape the future, to determine the outcome of history.’ 9 The Bush doctrine of preemption, preventive war, and regime change are at the core of this vision. United Nations Secretary-General Kofi Annan has argued against preemption by individual states on two grounds. First, preemption undermines collective security. Since this organization was founded, States have generally sought to deal with threats to the peace through containment and deterrence, by a system based on collective security and the United Nations Charter. Article 51 of the Charter prescribes that all States, if attacked, retain the inherent right of self-Defense. But until now it has been understood that when States go beyond that, and decide to use force to deal with broader threats to international peace and security, they need the unique legitimacy provided by the United Nations.

Second, Annan notes how the Bush doctrine challenges and indeed elides the distinction between preemption and preventive war and ultimately undermines international stability. Now, some say this understanding is no longer tenable, since an ‘armed attack’ with weapons of mass destruction could be launched at any time, without warning, or by a clandestine group. Rather than wait for that to happen, they argue, States have the right and obligation to use force pre-emptively, even on the territory of other States, and even while weapons systems that might be used to attack them are still being developed. According to this argument, States are not obliged to wait until there is agreement in the Security Council. Instead, they reserve the right to act unilaterally, or in ad hoc coalitions. This logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification. 10

The report of the Secretary-General’s High-level Panel on the UN, A More Secure World: Our Shared Responsibility, is also critical of the use of preventive war strategies by individual states. Specifically, the report argues that preventive war undertaken without UN authorization poses a risk to international stability: ‘in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.’ 11 But the High-level Panel report suggests that a preventive war undertaken with Security Council authorization would be legal and legitimate and is, under some 8

ff. 51.

Quoted in Ron Susskind, ‘Without a Doubt’, New York Times Magazine, October 17, 2004, 44–51,

9 Quoted in Corey Robin, ‘Remembrance of Empires Past: 9/11 and the End of the Cold War’, in Ellen Schrecker (ed.), Cold War Triumphalism: The Misuse of History After the Fall of Communism (New York: The New Press, 2004), 274–97: 284. 10 Kofi Annan, The Secretary-General Address to the General Assembly, New York, September 23, 2003, from www.UN.org (accessed 24/09/2003). 11 ‘Report of the Secretary General’s High-level Panel on Threats, Challenges and Change’, A More Secure World: Our Shared Responsibility (New York: UN, 2004), 63.

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circumstances, prudent. Specifically, ‘if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so chose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment—and to visit again the military option.’ 12 Presumably then, once approved by the Security Council, the state or coalition of states that argued for preventive war would be authorized to act under the logic of collective security. The Security Council could also itself direct the use of preventive measures. Although it might be more legal than unilateral state action, preventive war authorized or conducted by the Security Council is not necessarily more legitimate and prudent than preventive war undertaken by a single state without such authorization. Indeed, although there are some benefits to the practice of seeking UN approval, the pitfalls and consequences of preventive war after UN Security Council authorization are little different than the dangers of individual state action without UN authorization. Contrary to the expectation and hope of both some scholars and policymakers, clarifying the procedures for UN authorization of preventive war does not vitiate the problems of preventive war. 13 This is the case for two reasons. First, the logic of the High-level Panel’s rationale for preventive war is indistinct in important respects from the flawed reasoning of those who advocate preventive war by individual states. Although SecretaryGeneral Annan is ostensibly advocating for a ‘new security consensus,’ he is describing that which already exists. Secondly, the procedures proposed for UN Security Council authorization for preventive war do not eliminate the rather daunting problems of the legitimacy or prudence of preventive war. The practice of seeking UN Security Council authorization is potentially beneficial with respect to increasing transparency and accountability, but even if authorized, preventive war undertaken with UN Security Council authorization is destabilizing and destructive of the international order—based on the rule of law—it is designed to promote. My argument proceeds in several steps. First, I outline the arguments for preventive war by an individual state, as articulated by the United States. The Bush administration’s argument for preventive war rests on an erasure of the distinction between imminent and immanent threat. Secondly, I outline the argument for preventive war undertaken with the approval of the UN Security Council. Here the claim is that prevention is sometimes necessary, but that only the legitimacy provided by Security Council authorization will enable it to be effective. Thirdly, I compare the underlying logic of the US and the UN High-level Panel, showing that despite apparent significant differences from the logic of the United Sates (and there are real differences), the High-level Panel’s arguments are based on 12

UN High-level Panel, A More Secure World, 63. Allen Buchanan and Robert O. Keohane, ‘The Preventive Use of Force: A Cosmopolitan Institutionalist Perspective’, Ethics & International Affairs, 18: 1 (2004), 1–22. Allen Buchanan, ‘Institutionalizing the Just War’, Philosophy & Public Affairs, 34: 1 (Winter 2006), 2–38. 13

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a similar understanding of the contemporary context of world politics and of security. They share a vision of the contemporary challenges to international security—a ‘security imaginary’ or belief system—that stresses interdependence, insecurity, and threat. While the High-level Panel stresses nonmilitary means of promoting security and preventing conflict, like the Bush administration, it advocates preventive war in some circumstances. Fourthly, I show how the logic of collective preventive war is almost as destructive of international society as unilateral preventive war. This result might seem paradoxical, but while the process of coming to a decision about enacting collective security through preventive uses of force builds aspects of international society (through the practice of collective deliberation and the deference of individual states to an international body), the resort to collective preventive war ultimately undermines the peace and security of the international society it is intended to support and expand. The preventive use of force, even when undertaken by the UN Security Council presumes too much—that war is necessary and not too soon. The possibility of collective preventive war may alarm potential targets and cause them to escalate their own preparations, and perhaps make war before the anticipated UN action. In other words, preventive war by the UN does not necessarily escape security dilemma spirals.

4.1. THE US ARGUMENT FOR PREEMPTION AND PREVENTIVE WAR The Bush doctrine, as it is known, of preemption and preventive war is well summarized by their phrase that the best defense against terrorists and rogue states is a good offense. President Bush was not the first American to argue in favor of the legitimacy of preemptive action or even preventive war. Benjamin Franklin traveled to London in 1757 to urge Britain to expel the French from Canada to ensure their security on the Continent. A British pamphleteer, William Burke argued against the idea, however: ‘to desire the enemy’s whole country on no other principle but that otherwise you cannot secure your own, is turning the idea of mere defense into the most dangerous of all principles. It is leaving no medium between safety and conquest. It is to suppose yourself never safe, whilst your neighbor enjoys security.’ 14 Preventive nuclear and conventional war were also considered as possible responses to the Soviet and Chinese threats during the Cold War. 15 President Kennedy is reported to have considered enlisting the Soviet Union in bombing Chinese nuclear weapons production facilities to forestall their acquisition of 14 William Burke, quoted in Walter LeFeber, The American Age: US Foreign Policy at Home and Abroad, Volume 1—To 1920 (New York: W. W. Norton, 1994), 14–15. 15 Marc Trachtenberg, ‘Preventive War and U.S. Foreign Policy’, ch. 2 in this volume; David Alan Rosenberg, ‘ “A Smoking Radiating Ruin at the End of Two Hours”: Documents on American Plans for Nuclear War with Soviet Union’, International Security, 6: 3 (Winter 1981–82), 3–17.

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nuclear weapons, anticipating Israel’s air attack on Iraq’s nuclear plant, Osirak by twenty years. According to Kennedy’s Arms Control and Disarmament Director William Foster, Kennedy said ‘You know it wouldn’t be too hard if we could somehow get kind of an anonymous airplane to go over there, take out Chinese facilities—they’ve only got a couple—and maybe we could do it, or maybe the Soviet Union could do it, rather than face the threat of a China with nuclear weapons.’ 16 Neither is forcible regime change a new element in US foreign policy. Theodore Roosevelt’s Corollary to the Monroe doctrine argued for a right to interfere in the affairs of other states. Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of international police power. 17

Forcible regime changes initiated by the United States were conducted against the Dominican Republic (1965–6), Grenada (1983), Haiti (1994), and Panama (1989), and during the Bay of Pigs invasion of 1962, the United States attempted to overthrow the Castro regime in Cuba. US policy toward Iraq had, since the Clinton administration, been regime change. In the case of the US intervention in Grenada, part of the rationale was clearly preventive: the Soviets were alleged to be assisting Grenada in developing an airstrip suitable for military aircraft. Further, since the September 11, 2001 attacks, the United States has made war to force regime changes in Afghanistan (2001) and Iraq (2003), which also qualifies as a preventive war. 18 Although neither preemption nor regime change are new in US foreign policy, they were given greater prominence by the Bush administration and, to their credit, the administration has publicly articulated their reasoning. The current United States policy of preemption and preventive war rests on two ostensibly self-evident premises: first, that US interests are global, and second, that those interests are always vulnerable. The first premise leads to an extensive and expansive view of the ‘self ’ to be defended, and the latter leads to an increasing difficulty, or even inability, to distinguish between actual present threats and possible future threats; the global American self exists in an environment of immanent threat. The logical conclusion of this analysis seems to be a policy of preemption, the practice of preventive war, and the use of nonmilitary tools, such as ‘exporting’ free-market democracy to control and make the world more predictable. 16 Quoted in William Burr and Jeffrey T. Richelson, ‘Whether to “Strangle the Baby in the Cradle”: The United States and the Chinese Nuclear Program, 1960–64’, International Security, 25: 3 (Winter 2000–1), 54–99: 54. 17 Theodore Roosevelt, Annual Message to Congress, December 6, 1904. 18 See Dieter Janssen, ‘Preventive Defense and Forcible Regime Changes: A Normative Assessment’, Journal of Military Ethics, 3: 2 (2004), 105–28.

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4.1.1. The Global American Self Although the view of expansive American interests is not new, it has almost always competed with an isolationist strain in US foreign policy decision-making circles. Since the end of the Cold War, however, the foreign policy elite of the United States has moved toward an expansive definition of its interests and the threats to those interests. For example, in 1991, Bush administration defense policy was premised on the perceived need to have global capabilities. ‘America must possess forces able to respond to threats in whatever corner of the globe they may occur.’ 19 Lest one think that an expansive vision of the America’s role in the world is confined to the Republican Party, President Clinton’s first Secretary of Defense, Les Aspin, also argued for a broad conception of US interests: ‘While we no longer need to prepare for global [nuclear] war, the new dangers to our interests are global.’ 20 In the 1995 National Security Strategy the Clinton administration argued that ‘Our economic and security interests are increasingly inseparable.’ 21 Moreover, as Bill Clinton said in the National Security Strategy of 1995, ‘The United States recognizes that we have a special responsibility that goes along with being a great power. . . . Our nation can only address this era’s dangers and opportunities if we remain actively engaged in global affairs. We are the world’s greatest power, and we have global interests as well as responsibilities.’ 22 While a candidate for president, Bill Clinton articulated the view that ‘foreign and domestic policy are inseparable in today’s world.’ In 1996 President Clinton argued ‘there’s no longer an easy dividing line between foreign policy and domestic policy . . . the world we’re living in doesn’t permit that luxury any more.’ 23 The George W. Bush administration articulated a similarly global view of the United States position in the world: ‘Today, the distinction between domestic and foreign affairs is diminishing. In a globalized world, events beyond America’s borders have a greater impact inside them.’ 24 The 2001 Quadrennial Defense Review (QDR) emphasized that ‘The United States has interests, responsibilities, and commitments that span the world. As a global power with an open society, the United States is affected by trends, events and influences that originate from beyond its borders.’ 25 According to the QDR, the ‘enduring national interests’ of the United States which are to be secured by force if necessary include 19 US Department of Defense, Annual Report to the Congress, Fiscal Year 1992 (Washington, DC, January 1991), 131–2. 20 Les Aspin, Secretary of Defense, Report of the Bottom-Up Review (Washington, DC, October 1993), p. iii. 21 The White House, A National Security Strategy of Engagement and Enlargement, (Washington, DC, February 1995), 19. Hereafter, National Security Strategy, 1995. 22 National Security Strategy, 1995, pp. ii and iii. 23 Quoted in Andrew Bacevitch, American Empire: The Realities and Consequences of US Diplomacy (Cambridge: Harvard University Press, 2002), 90. 24 The National Security Strategy of the United States of America. (Washington, DC: Office of the President, September 2002), 31. Hereafter, National Security Strategy, 2002. 25 US Department of Defense, Report of the Quadrennial Defense Review (Washington, DC: US GPO, September 30, 2001). Hereafter, QDR, 2001, 2.

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‘contributing to economic well-being’ which itself includes ‘vitality and productivity of the global economy’ and ‘access to key markets and strategic resources.’ 26 The identity of the United States as a global power with global interests is taken for granted. Under this global view of the American self whose security interests are defined in economic as well as military terms, it is legitimate to act globally in ‘self ’ defense.

4.1.2. From Imminent Threats to Immanent Threat The Bush doctrine also rests on an enlarged sense of vulnerability and the inadequacy of traditional self-defense against new kinds of enemies. As with the understanding of an enlarged American self, the sense of vulnerability grew prior to the Bush administration. Although the George H. W. Bush administration turned Iraq out of Kuwait, the Clinton administration focused intensely on rogue States and proposed to enlarge American security through democratization of nondemocracies. There was also an increased sense during the Clinton administration of a growing number and variety of threats. After leaving office, Anthony Lake, President Clinton’s first National Security Adviser, published 6 Nightmares: Real Threats in a Dangerous World and How America Can Meet Them in 2000. Under the heading, ‘Global World, Global Weapons’ Lake describes the all too easy access to WMD technology provided by increased globalization. 27 Yet the George W. Bush administration has heightened the emphasis on vulnerability, arguing that the crystallization of threats to the United States will not be telegraphed by troop movements or declarations of war, the United States must assume that it cannot afford to wait for threats to be clearly identified. As Secretary of Defense Donald Rumsfeld argues, ‘the problem with terrorism is that there is no way to defend against the terrorists at every place and every time against every conceivable technique. Therefore, the only way to deal with the terrorist network is to take the battle to them. That is in fact what we’re doing. That is in effect self-defense of a preemptive nature.’ 28 The Bush administration further argues, following the 9/11 terrorist attack, that ‘new deadly challenges have emerged from terrorists and rogue states.’ 29 Rogue states are defined in the National Security Strategy as regimes that:

r brutalize their own people and squander their national resources for the personal gain of the rulers;

r display no regard for international law, threaten their neighbors, and callously violate international treaties to which they are a party; 26

QDR, 2001, 2. Anthony Lake, 6 Nightmares: Real Threats in a Dangerous World and How America Can Meet Them (Boston, MA: Little, Brown, 2000), 24–32. 28 Donald H. Rumsfeld, Remarks at Stakeout Outside ABC TV Studio October 28, 2001, www.defenselink.mil/news/Oct2001/t10292001_t1028sd3.html 29 National Security Strategy, 2002, 13. 27

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r are determined to acquire weapons of mass destruction, along with other advanced military technology, to be used as threats or offensively to achieve the aggressive designs of these regimes;

r sponsor terrorism around the globe; and r reject basic human values and hate the United States and everything for which it stands. 30

The administration makes ‘no distinction’ between terrorists and rogue states and suggests that terrorists and rogue states could collaborate and deterrence cannot be assured of working against either type of adversary. 31 Therefore, the ‘best defense is a good offense’. 32 Given the goals of rogue states and terrorists, the United States can no longer rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. . . . The greater the threat, the greater is the risk of inaction— and the more compelling is the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. 33

In sum, the argument for preemption presumes that there will be no time to react if one waits. As then National Security Adviser Condoleezza Rice suggests, ‘new technology requires new thinking about when a threat actually becomes ‘imminent.’ So as a matter of common sense, the United States must be prepared to take action, when necessary, before threats have fully materialized.’ 34 Thus, as I argue elsewhere, the US strategy erases the distinction between imminent threat (soon to be realized) and immanent threat (already and permanent). 35 There is no difference between present and future threats: the United States is already and always vulnerable. The 2002 National Security Strategy of the United States argues that ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries’. 36 Further, the capabilities of today’s adversaries are to be understood in terms of their potential future capabilities. Thus, the Bush administration shifted from basing military planning on a potential adversary’s intentions and likely threats—what was known as ‘threat-based’ planning—to a ‘capabilities-based approach’ where the U.S. attempts to ‘anticipate the capabilities 30

31 National Security Strategy, 2002, 5, 14–15, and 30. National Security Strategy, 2002, 14. National Security Strategy, 2002, 6; National Strategy for Combating Terrorism (Washington, DC: The White House, 2003), 24. 33 National Security Strategy, 2002, 15. 34 Condoleezza Rice, October 1, 2002, to the Manhattan Institute, Waldorf Astoria Hotel, New York. 35 Neta C. Crawford, ‘The Justice of Preemption and Preventive War Doctrines’, in Mark Evans (ed.), Just War Theory: A Reappraisal (University of Edinburgh Press, 2005), pp. 25–49; and Neta C. Crawford, ‘The Road to Global Empire: The Logic of U.S. Foreign Policy After 9/11’, Orbis, 48: 4 (Fall 2004), 685–703. 36 National Security Strategy, 2002, 15. 32

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that an adversary might employ’ and ‘focuses more on how an adversary might fight than who the adversary might be and where war might occur.’ 37 Uncertainty drives the process: the ‘concept reflects the fact that the United States cannot know with confidence what nation, combination of nations, or non-state actor will pose threats to vital U.S. interests or those of allies and friends decades from now.’ 38

4.1.3. Elements of the Bush Doctrine While most attention on the Bush Doctrine has focused on preemption, other elements of the doctrine are equally important. Specifically, the doctrine includes the drive to maintain global military superiority or ‘preeminence’; a focus on ‘domain awareness’ coupled with forward defense; a proactive attitude toward intervention; and an emphasis on regime change. Thus, although some of these elements have appeared in previous US doctrine, taken together all the elements of the Bush doctrine constitute a revolution in US foreign and military policy. It is worth recalling the logic of these other elements of the Bush doctrine and their relation to the assertion of a right of preemption and preventive war. The notion of the necessity for preemption and an expansive conception of what constitutes a threat is coupled with a doctrine of permanent US military superiority. The goal of US military strategy as announced in the 2001 Quadrennial Defense Review is thus maintaining ‘preeminence.’ 39 Or, as the president said at West Point in 2002, ‘America has, and intends to keep, military strengths beyond challenge. . . . ’ 40 Specifically, ‘Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States.’ 41 United States military spending has increased even apart from spending on Iraq and Afghanistan, and there is a focus on innovation to meet and surpass potential future challenges. Further, because of the sense of great and perpetual vulnerability, US strategy calls for both greater awareness of the global environment and forward defense. Specifically, the military objective is to ‘attain domain awareness’ defined as the ‘effective knowledge of all activities, events, and trends . . . that could threaten the safety, security, or environment of the United States and its populace.’ This awareness ‘enables identification of threats as early and as distant from our borders— including territories and overseas installations—as possible to proved maximum time to determine the optimal course of action.’ 42 In addition, the objective is to protect both assets at home and abroad on the reasoning that the United States strength depends on ‘expansive and efficient transportation, as well as logistic and information systems permitting unsurpassed participation in global commerce’. Arguing that these global assets are vital, especially in wartime, to support ‘operations abroad’ the administration has essentially rebordered the United 37 40 41

38 QDR, 2001, 13. 39 QDR, 2001, 30 and 62. QDR, 2001, 14. Bush at West Point. Also see National Security Strategy, 2002, 29. 42 National Strategy for Combating Terrorism, 25. National Security Strategy, 2002, 30.

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States to include all places where the United States might have an interest or an asset. The integrity of critical infrastructures, permitting national security mobilization and global engagement during times of both peace and conflict, must be assured. In many cases U.S. enterprises overseas are linked or networked to domestic critical infrastructure, and a terrorist event overseas would have a cascading effect on domestic reliability. To reduce this possibility, the Department of State will take the lead and . . . identify and prioritize critical infrastructure overseas and partner with industry to establish cost-effective best practices and standards to maximize security. Where appropriate, we will coordinate with the host country to ensure its security and response network is adequate. 43

In this way, the ‘self-defense’ requirements of the United States are understood in global terms. Not only the ‘homeland’ must be defended, but a vast network of ‘US enterprises overseas’ are included in this thick notion of the globalized American self. Thus, under this logic, self-defense is no longer the defense of a territorially bounded state; the United States must practice forward defense of its global domain. At the same time that the interests of the United States expand, the sovereign space of other states contracts. In the words of Richard Haas, then director of policy planning for the State Department, ‘Sovereignty entails obligations. One is not to massacre your own people. Another is not to support terrorism in any way. If a government fails to meet these obligations, then it forfeits some of the normal advantages of sovereignty, including the right to be left alone inside your own territory. Other governments, including the United States, gain the right to intervene.’ 44 Similarly, David Frum and former Assistant Secretary of Defense Richard Perle argue, ‘National sovereignty is an obligation as well as an entitlement. A government that will not perform the role of government forfeits the rights of a government’. 45 According to Frum and Perle, it is time that we all faced the reality of the necessity for intervention by the United States. The United Nations system was founded on the fiction of the equal competence of all the world’s governments, of which there are now more than 160. . . . The clear-eyed wisdom of the Roosevelt Corollary . . . gave way to the idealistic hopes of the UN Charter that we could all keep order together. . . . When drought or famine lays waste to a poor country, the world’s wealthy countries band together to send food and relief. How are we justified in turning our backs when the country is ravaged by human wrongdoers rather than by natural disaster? And when these wrongdoers threaten us—or create opportunities for terrorists who intend to threaten us—then the moral case for intervention is reinforced by the unignorable dictates of self-interest. 46 43

National Strategy for Combating Terrorism, 26. Quoted in Nicholas Lehmann, ‘The Next World Order’, The New Yorker, April 1, 2002, 45. 45 David Frum and Richard Perle, An End to Evil: How to Win the War on Terror (New York: Ballentine Books, 2003), 102. 46 Frum and Perle, An End to Evil, 102–3. 44

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The Bush doctrine also famously includes the mission to spread democracy and other American values to the Middle East on the argument that democracies are more peaceful than nondemocracies. President Bush argues: We find our greatest security in the advance of human freedom. Free societies look to the possibilities of the future, instead of feeding old resentments and bitterness. Free countries build wealth and prosperity for their people in an atmosphere of stability and order, instead of seeking weapons of mass murder and attacking their neighbors. Because America loves peace, America will always work and sacrifice for the expansion of freedom.

And, President Bush argued, ‘These goals—advancing against disease, hunger and poverty—will bring greater security to our country. They are also the moral purpose of American influence. They set an agenda for our government, and they give idealistic citizens a great cause to serve.’ 47 US security and morality are, thus, inextricably linked by the mission to spread democracy and freedom. In sum then, the United States has claimed three rights with respect to the use of force: the right to preempt against imminent threats; the right to engage in preventive war against possible future threats; and the right to intervene and remake other states, turning them into free-market democracies so that the longterm stability of the international order is secured. If the Bush administration is correct—that the United States has global interests, that those interests are under constant and grave threat, that there is no time to react against the omnipresent danger of annihilating force—then their conclusions make sense: the United States has no choice but to patrol, police, and control as much as possible to protect its global interests. However, as I shall suggest later, while the argument that preemption might, in limited circumstances, be legitimate and necessary is persuasive, the case for an expansive conception of preemption, for preventive war, and for regime change are not at all proven.

4.2. THE ARGUMENT FOR PREVENTIVE ACTION BY THE UN Although it is not stated in so many words, Chapter VII of the UN Charter allows the Security Council to use preventive military force. Specifically, Article 39 says ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’ This emphasis on threats and the maintenance of peace, as well as the explicit discussion in Article 50 of a Security Council decision to use ‘preventive or enforcement measures’, clearly suggests that the preventive use of force might legitimately be authorized by the Security Council. By contrast, Article 51 suggests that the use of preventive force 47 George W. Bush, Remarks by the President in Commencement Address to United States Coast Guard Academy, May 21, 2003. www.whitehouse.gov/news/releases/2003/05/20030521–2.html. Hereafter, Bush at Coast Guard.

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by individual member states is not legitimate: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-Defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ In sum, a state must be attacked first before it can claim self-defense. And while preventive war by individual states is not a right, the use of preventive military force by the Security Council is understood as legitimate. Thus, the High-level Panel and the Secretary-General are not proposing a new role for the Security Council so much as specifying why it might be necessary to invoke the preventive war function (more now than in the past) and suggesting how that role should be undertaken. The argument that collective security through the UN Security Council legitimizes preventive war rests on a view of the world as both interconnected and vulnerable and a belief that the Security Council is the proper venue for deliberation and authorization.

4.2.1. Complex Insecurity Secretary-General Kofi Annan holds the view that ‘today’s threats to our security are all interconnected. We can no longer afford to see problems such as terrorism, or civil wars, or extreme poverty, in isolation. Our strategies must be comprehensive.’ 48 The Secretary-General emphasizes a broader view of prevention than the United States does: ‘the principal aim should be to prevent threats from emerging. . . . ’ through the use of sanctions and mediation. But, Annan argues, ‘When all else fails it may be necessary and legitimate to use force.’ 49 Similarly, the chair of the Secretary-General’s High-level Panel, Anand Panyarachun argues: ‘ours is an age of unparalleled interconnection among threats to international peace and security, and mutual vulnerability between weak and strong’. 50 The High-level Panel argues that large-scale threats to individual states must be understood as a threat to international security: ‘Any event or process that leads to large-scale death or lessening of life chances and undermines States as the basic unit of the international system is a threat to international security.’ 51 The Highlevel Panel then identifies six ‘clusters of threats with which the world must be concerned now and in the decades ahead.’ 52 The threats are worth noting in detail because they are so comprehensive:

r Economic and social threats, including poverty, infectious disease, and environmental degradation

r Interstate conflict

48 Kofi Annan, ‘Foreward’ to the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change, A More Secure World, p. vii. 49 Annan, ‘Foreward’, p. viii. 50 Anand Panyarachun, ‘Transmittal Letter’, to the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change, A More Secure World, p. xi. 51 High-level Panel, A More Secure World, 2. 52 High-level Panel, A More Secure World, 2.

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r Internal conflict, including civil war, genocide, and other large-scale atrocities r Nuclear, radiological, chemical, and biological weapons r Terrorism r Transnational organized crime 53 Secretary-General Kofi Annan’s 2005 report, In Larger Freedom, essentially agrees with the analysis of the High-level Panel and argues for a similar ‘vision of collective security’. Annan’s list of threats is comprehensive and almost identical to the threats identified by the High-level Panel: 78. The threats to peace and security in the twenty-first century include not just international war and conflict but civil violence, organized crime, terrorism and weapons of mass destruction. They also include poverty, deadly infectious disease and environmental degradation since these can have equally catastrophic consequences. All of these threats can cause death or lessen life chances on a large scale. All of them can undermine States as the basic unit of the international system. 54

Annan then, in effect, argues that no state is an island; all are affected by what happens elsewhere in the world and therefore a threat to one is a threat to all. 79. Depending on wealth, geography and power, we perceive different threats as the most pressing. But the truth is we cannot afford to choose. Collective security today depends on accepting that the threats which each region of the world perceives as most urgent are in fact equally so for all. 80. In our globalized world, the threats we face are interconnected. The rich are vulnerable to the threats that attack the poor and the strong are vulnerable to the weak, as well as vice versa. A nuclear terrorist attack on the United States or Europe would have devastating effects on the whole world. But so would the appearance of a new virulent pandemic disease in a poor country with no effective health-care system. 81. On this interconnectedness of threats we must found a new security consensus, the first article of which must be that all are entitled to freedom from fear, and that whatever threatens one threatens all. Once we understand this, we have no choice but to tackle the whole range of threats. 55

4.2.2. The UN’s Evolving Paradigm of Prevention When Secretary-General Annan took office, he urged the UN to ‘shift from a culture of reaction to a culture of prevention’. 56 However, prevention can be undertaken many ways. Among UN intellectuals prevention is understood in comprehensive terms. As Kofi Annan describes it. 53

High-level Panel, A More Secure World, 2. Kofi Annan, Report of the Secretary-General, In Larger Freedom: Towards Development, Security, and Human Rights for All (United Nations General Assembly A/59/2005: March 21, 2005), 24–5. 55 Annan, In Larger Freedom, 25. 56 Kofi Annan, ‘Prevention of Armed Conflict: Report of the Secretary General’, A/55/985S/2001/574, New York: United Nations, June 7, 2001. 54

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No task is more fundamental to the United Nations than the prevention and resolution of deadly conflict. Prevention, in particular, must be central to all our efforts, from combating poverty and promoting sustainable development; through strengthening national capacities to manage conflict, promoting democracy and the rule of law, and curbing the flow of small arms and light weapons; to directing preventive operational activities, such as the use of good offices, Security Council missions and preventive deployments. 57

The Secretary-General’s June 2001 Report on ‘Prevention of Armed Conflict’ adopted the language of the Carnegie Commission on Preventing Deadly Conflict, which distinguishes between operational prevention and structural prevention and focused on the link between development and peace. ‘The primary focus of preventive action should be in addressing the deep-rooted socio-economic, cultural, environmental, institutional, political and other structural causes that often underlie the immediate symptoms of conflicts.’

r ‘Preventive action should be initiated at the earliest possible stage of a conflict cycle

r r

in order to be most effective. One of the principal aims of preventive action should be to address the deep-rooted socio-economic, cultural, environmental, institutional and other structural causes that often underlie the immediate political symptoms of conflicts’. An effective preventive strategy requires a comprehensive approach that encompasses both short-term and long-term political, diplomatic, humanitarian, human rights, developmental, institutional and other measures taken by the international community, in cooperation with national and regional actors. Conflict prevention and sustainable and equitable development are mutually reinforcing activities. An investment in national and international efforts for conflict prevention must be seen as a simultaneous investment in sustainable development since the latter can best take place in an environment of sustainable peace. 58

Both the Secretary-General and the High-level Panel urge policies that are truly preventive in the sense of preventing the growth of the conditions that lead to war. For example, they urge renewed attention to economic development and the amelioration of poverty on the view that this will decrease the risk of war. As Annan argues, ‘While poverty and denial of human rights may not be said to “cause” civil war, terrorism or organized crime, they all greatly increase the risk of instability and violence. Similarly, war and atrocities are far from the only reasons that countries are trapped in poverty, but they undoubtedly set back development’. 59 The emphasis on comprehensive prevention by the Secretary-General and UN security intellectuals is unsurprising given that the UN has, for more than a decade, been focused on ameliorating the root causes of conflict and war as a way to improve the likelihood of success of its traditional peacekeeping missions, and has moved toward prevention with respect to humanitarian intervention. During the 1990s, UN operations went well beyond the more limited peacekeeping, 57 59

Annan, In Larger Freedom, 29. Annan, In Larger Freedom, 5.

58

Annan, ‘Prevention of Armed Conflict’.

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electoral assistance, and development aid roles it had taken during the Cold War. There was a tendency to call this gradual broadening of the UN’s role ‘mission creep’ but it was more than that. The rationale for increasingly intrusive and comprehensive intervention is evident in a chronological reading of various UN reports during the 1990s. Each succeeding report expanded the rationale for more complex preventive action and intervention by the UN to preserve, provide, and promote peace. The UN Secretary-General’s 1992 An Agenda for Peace, the 1995 Supplement to An Agenda for Peace, and the 2000, ‘Report of the Panel on United Nations Peace Operations’ (known as the Brahimi Report) built on each other and ultimately argue that the only way to bring lasting peace is to address the underlying causes of conflicts and repair the defects of states that had led to war and collapse in the first place. 60 Thus, traditional peacekeeping practices evolved into peacebuilding missions, to state-building and then liberal market democracy building exercises on the reasoning that this was the route to peace and stability. Post-conflict peacebuilding efforts have become so comprehensive in the quest to prevent the renewal of conflict that they are now called transitional administration and likened to trusteeship. 61

4.2.3. From Ameliorating Root Causes to Preventive War The Secretary-General correctly argues that preventive war is allowed under the UN Charter (in Chapter VII) and required under the Genocide Convention. ‘Where threats are not imminent but latent, the Charter gives full authority to the Security Council to use military force, including preventively, to preserve international peace and security.’ 62 But Annan does not list a set of threats that would prompt preventive military action by the UN. Rather, he suggests only one scenario: ‘As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?’ 63 Annan’s plea for the protection of humanity recalls the decade long debate about humanitarian interventions that culminated in the report of the International Commission on Intervention and State Sovereignty published in December 2001. In the words of the International Commission, there is a ‘responsibility to protect’ communities from mass killing, rape, and starvation. ‘What has been gradually emerging is a parallel transition from a culture of sovereign impunity to a culture of national and international accountability. International organizations, 60

Boutros Boutros-Ghali, Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping (New York: United Nations, 1992); Boutros Boutros-Ghali, ‘Supplement to An Agenda for Peace’, UN Document no. A/50/60-S/1995/1, January 3, 1995; Panel on United Nations Peace Operations, ‘Report of the Panel on United Nations Peace Operations’, UN Document no. A/55/305-S/2000/809, New York: United Nations, August 21, 2000. 61 Roland Paris, At War’s End: Building Peace After Civil Conflict (Cambridge: Cambridge University Press, 2004). Neta C. Crawford, ‘How Previous Ideas Affect Later Ideas,’ in Robert Goodin and Charles Tilly eds, Oxford Handbook of Contextual Political Studies (Oxford: Oxford University Press, 2006) 266–83. 62 Annan, In Larger Freedom, 33. 63 Annan, In Larger Freedom, 33.

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civil society activists and NGOs use the international human rights norms and instruments as the concrete point of reference against which to judge state conduct.’ 64 Notably, the International Commission on Intervention and State Sovereignty argues that there is a ‘necessary re-characterization’ of state sovereignty underway: ‘from sovereignty as control to sovereignty as responsibility in both internal and external functions.’ 65 The International Commission thus urges a reconceptualization of the humanitarian intervention debate from a language of a right to intervene to a ‘responsibility to protect’ where protection entails ‘not just the responsibility to react to an actual or apprehended human catastrophe, but the responsibility to prevent it, and the responsibility to rebuild after the event.’ 66 Prevention, in the International Commission’s view, includes ‘root cause’ prevention, such as addressing poverty and institutional reform and more ‘direct prevention efforts’ such as sanctions and positive inducements and ‘In extreme cases, direct prevention might involve the threat to use force.’ But the International Commission notably argues that, ‘Intervention should only be considered when prevention fails.’ 67 But while the UN had gradually moved toward a more comprehensive understanding of prevention and during the 1990s, coupled with greater intervention, the UN’s understanding of its role was not primarily in terms of the use of military force in a preventive role. Yet by 2004 there was the belief that sometimes when primary prevention failed, military force would be required. Therefore both the High-level Panel and the Secretary-General urged the development of clear procedures within the UN Security Council structure for the authorization and use of preventive military force.

4.2.4. Grounds for Preemption and Preventive Use of Force The High-level Panel and the 2005 report of the Secretary-General are thus proposing both continuity and innovation in the way the UN approaches security threats. The continuity lies in the emphasis on long-term or structural prevention and the recognition that states have the right to use force preemptively. Historically, within the dominant traditions of international law and just war theory, self-defense by an individual state is considered justified if it is conducted with the aim of restoring the peace and if war is conducted with respect to principles of discrimination and proportionality. The UN Charter does not require individual states to forgo the right of self-defense, nor are states required to cede their defense to the UN: Article 51 of the Charter expressly allows for self-defense by individual states and the Secretary-General argues that preemption is also allowed under the Charter under certain conditions. ‘Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend 64 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa, Canada: International Development Research Center, December 2001), 14. 65 ICISS, The Responsibility to Protect, 13. 66 ICISS, The Responsibility to Protect, 17. 67 ICISS, The Responsibility to Protect, 25.

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themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.’ 68 The innovation lies in the increased emphasis on using military force preventively. ‘The question is not whether such action can be taken: it can, by the Security Council as the international community’s collective security voice, at any time it deems that there is a threat to international peace and security. The Council may well need to be prepared to be much more proactive on these issues, taking more decisive action earlier, than it has been in the past.’ 69 The arguments of the Secretary-General and the High-level Panel for preventive uses of force rest on four premises. First, no state is an island. The world is both profoundly interconnected and deeply insecure: ‘Today’s threats recognize no national boundaries, are connected, and must be addressed at the global and regional as well as the national levels.’ 70 This sense of interconnectedness is related to an emerging global perspective that is distinct from an international perspective of sovereign states that are largely immune from outside intervention and where moral boundaries end at state borders. Secondly, no state is omnipotent. Although the most important actors ‘continue to be individual sovereign States’, the nature of today’s threats are such that ‘No State, no matter how powerful, can by its own efforts alone make itself invulnerable to today’s threats’. 71 Moreover, these threats are interconnected: ‘Civil War, disease and poverty increase the likelihood of State collapse and facilitate the spread of organized crime, thus also increasing the risk of terrorism and proliferation due to weak States and weak collective capacity to exercise the rule of law.’ 72 Thirdly, the success of collective security depends on collective action; cooperation is not only desired, it is required. In the words of the High-level Panel, ‘a new comprehensive collective security system’ that commits all states ‘to act cooperatively in the face of a broad array of threats’ is the best way to address the problems that lead to insecurity. 73 Fourthly, prevention must be understood in comprehensive terms: ‘Preventing mass-casualty terrorism requires a deep engagement to strengthen collective security systems, ameliorate poverty, combat extremism, end the grievances that flow from war, tackle the spread of infectious disease and fight organized crime.’ 74

4.2.5. Legitimacy, Cause, and Effectiveness Three questions follow from the assertion of the right of the Security Council to authorize preventive uses of military force. First, granting that preventive use of force is legal under the UN Charter, on what grounds could such authorization be legitimate in any particular circumstance? The High-level Panel and the SecretaryGeneral propose both procedural and substantive grounds for legitimacy. The 68 70 72

69 High-level Panel, A More Secure World, 64. Annan, In Larger Freedom, 33. 71 High-level Panel, A More Secure World, 16. High-level Panel, A More Secure World, 1. 73 74 Ibid. Ibid. Ibid.

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High-level Panel argues that ‘legitimacy’ depends on decisions ‘being made on solid evidentiary grounds, and for the right reasons, morally as well as legally’. Specifically, the High-level Panel says: ‘If the Security Council is to win the respect it must have as the primary body in the collective security system, it is critical that its most important and influential decisions, those with large-scale life-anddeath impact, be better made, better substantiated and better communicated.’ 75 The procedural requirement for decision-making is publicity in the sense of a public airing of the reasons for the decision. The High-level Panel’s proposed substantive requirements for legitimate authorization or endorsement of the use of force by the Security Council are seriousness of threat, proper purpose, last resort, proportional means, balance of consequences. Specifically, the High-level Panel proposes that the members of the Security Council ask a series of questions with respect to these criteria that implicitly, although perhaps not intentionally, recall the just war tradition: (a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended? (b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved? (c) Last resort. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed? (d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question? (e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction? 76

Although he uses language even more directly drawn from the just war tradition, the Secretary-General proposes similar guidelines for a decision and has urged the Security Council to adopt these principles to authorize or mandate the use of force. 126. The task is not to find alternatives to the Security Council as a source of authority but to make it work better. When considering whether to authorize or endorse the use of military force, the Council should come to a common view on how to weigh the seriousness of the threat; the proper purpose of the proposed military action; whether means short of the use of force might plausibly succeed in stopping the threat; whether the military option is proportional to the threat at hand; and whether there is a reasonable chance of success. By undertaking to make the case for military action in this way, the Council would add 75

Ibid., 66.

76

Ibid., 67.

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transparency to its deliberations and make its decisions more likely to be respected, by both Governments and world public opinion. 77

Thus, the grounds for legitimacy are rooted first in the procedure of full and transparent public discussion for which evidence is provided and factual challenges are addressed, and second in the substance of the answer to the questions of cause and conduct of war. 78 And it is clear that both the High-level Panel and the SecretaryGeneral believe that the procedure for providing for public accountability and transparency is as important as the substance in providing legitimacy. By contrast, in practice during debate leading up the 2003 Coalition war against Iraq, while the United States and Britain gestured toward providing evidence that preventive use of force was necessary, their case depended more on the assertion of authority and private or secret knowledge. The assertion of legitimacy was, essentially, based on the claim that the world should trust that the United States and UK were right and acting in the best interests of the rest of the world. The fact that their evidence was, according to some participants, ‘cooked’ suggests less respect for both the process of public deliberation and for the substance of arguments. The second question regards the substantive criteria for preventive uses of force. Under what circumstances would preventive uses of military force be justified? What is a just cause? With respect to international threats, the High-level panel says, most broadly that the ‘language of Chapter VII is inherently broad enough and has been interpreted broadly enough to allow the Security Council to approve any coercive action at all, including military action’ to maintain or restore international peace and security. 79 Threats that might require military action are defined broadly: ‘That is the case whether the threat is occurring now, in the imminent future or more distant future; whether it involves the State’s own actions or those of non-State actors it harbours or supports; or whether it takes the form of an act or omission, an actual or potential act of violence or simply a challenge to the Council’s authority.’ 80 It is implied that such threats must be quite serious: ‘In the world of the twenty-first century, the international community does have to be concerned about nightmare scenarios combining terrorists, weapons of mass destruction and irresponsible States, and much more besides, which may conceivably justify the use of force, not just reactively but preventively and before a latent threat becomes imminent.’ 81 Although it lists a series of threats, the High-level Panel is basically silent on the threshold of threat to international peace and security that should prompt preventive military action. ‘Questions of legality apart, there will be issues of 77

Annan, In Larger Freedom, 33. The International Commission on Intervention and State Sovereignty proposes a similar set of criteria for a decision to use force for humanitarian purposes: right authority, just cause, right intention, last resort, proportional means, and reasonable prospect of success. ICISS, The Responsibility to Protect, 32–7. 79 High-level Panel, A More Secure World, 63–4. 80 High-level Panel, A More Secure World, 64. 81 Ibid. 78

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prudence, or legitimacy, about whether such preventive action should be taken: crucial among them is whether there is credible evidence of the reality of the threat in question (taking into account both capability and specific intent) and whether the military response is the only reasonable one in the circumstances.’ 82 The High-level Panel is correct to point out the dilemma of evidence but absent from their discussion is a way to decide just how threatening the ‘threat’ is. What constitutes a real and present danger, the ‘nightmare’? Will we all simply know the nightmare when we see it, or might it be much more open to interpretation? Are we to focus exclusively on the capabilities of actors and assume that capabilities reveal intentions? Each threat will of course be unique in terms of actors, geography, and timing, but in the absence of guidelines, will our tolerance of threat simply creep lower and lower? Is a shift in the balance of power, or the rising cost of fuel oil, a nightmare? As discussed later, the High-level Panel and the Secretary-General propose to enhance the early warning capacities of the UN, but the threshold of threats that trigger action is unclear at best. By contrast, the High-level Panel is, not surprisingly, more precise with respect to the already accepted norm of preventing genocide and it endorses the emerging norm of a ‘responsibility to protect’. Similarly, the Secretary-General, as noted already believes preventive uses of force are justified to forestall crimes against humanity. ‘As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?’ 83 But the Secretary-General is not any clearer than the High-level Panel on the other sorts of threats to international security that would trigger preventive military action by the Security Council. The threshold might be high or low, although the language of High-level Panel—‘being more proactive’ and ‘taking decisive action earlier’—suggests the use of force is to be triggered at a low threshold for tolerating threats. On the other hand, the International Commission on Intervention and State Sovereignty suggests that the threshold for the use of military force for humanitarian intervention should be high, a response only to ‘extreme and exceptional cases’. The International Commission then asks ‘But what is an extreme case? Where should we draw the line in determining when military intervention is, prima facie, defensible?’ 84 4.11. The starting point, here as elsewhere, should be the principle of non-intervention. This is the norm from which any departure has to be justified. All members of the United Nations have an interest in maintaining an order of sovereign, self-reliant, responsible, yet interdependent states. In most situations, this interest is best served if all states, large and small, abstain from intervening or interfering in the domestic affairs of other states. Most internal political or civil disagreements, even conflicts, within states do not require 82 83 84

High-level Panel, A More Secure World, 64. Annan, Report of the Secretary-General, In Larger Freedom, 33. ICISS, The Responsibility to Protect, 31.

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coercive intervention by external powers. The non-interference rule not only protects states and governments: it also protects peoples and cultures, enabling societies to maintain the religious, ethnic, and civilizational differences that they cherish. 4.12. The norm of non-intervention is the equivalent in international affairs of the Hippocratic principle—first do no harm. Intervention in the domestic affairs of states is often harmful. It can destabilize the order of states, while fanning ethnic or civil strife. When internal forces seeking to oppose a state believe that they can generate outside support by mounting campaigns of violence, the internal order of all states is potentially compromised. The rule against intervention in internal affairs encourages states to solve their own internal problems and prevent these from spilling over into a threat to international peace and security. 85

The International Commission then proceeds to specify two extreme cases: genocide and ethnic cleansing, whether ‘actual or apprehended’. 86 And of course, apprehended means, in this context, anticipated with anxiety. The third question raised by UN Security Council preventive uses of force is one of effectiveness. Would preventive uses of force authorized by the UN Security Council be more effective than preventive uses of force by individual states? Both the High-level Panel and the Secretary-General raise the issue of effectiveness, respectively in terms of ‘balance of consequences’ and ‘reasonable chance of success’ and imply that preventive uses of force undertaken by the UN body would be more effective than those undertaken by individual states. Their argument is that Security Council authorization would make collective security more robust in the sense that it urges even the most powerful states to submit to the discipline of putting its defense in the hands of the Security Council. Further, it is believed that collective deliberation will be seen as more legitimate, and the resulting use of force will thus be more effective: ‘effectiveness of the global collective security system, as with any other legal order, depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy—their being made on solid evidentiary grounds, and for the right reasons morally as well as legally.’ 87

4.3. THE ‘NEW SECURITY CONSENSUS’: UNDERLYING ASSUMPTIONS AND LOGIC The Bush administration Secretary-General Annan, and the UN High-level Panel share a remarkably similar understanding of the threats to global security. All view the world through the lens of interdependence with a focus on the consequences of globalization. But there are at least two versions of interdependence. There is the complex interdependence described by Robert Keohane and Joseph Nye in their 1977 book Power and Interdependence where countries are 85 87

ICISS, The Responsibility to Protect, 31. High-level Panel, A More Secure World, 66.

86

Ibid., 32.

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increasingly connected by webs of social and political relationships: transnational flows and transnational actors become more dominant, while states and traditional security concerns as well as the use of military force become less important. 88 Alternatively, there is the darker version of interdependence evoked most famously perhaps by Robert D. Kaplan in his essay, ‘The Coming Anarchy’ first published in The Atlantic in 1994. Kaplan’s vision was of ‘Disease, overpopulation, unprovoked crime, scarcity of resources, refugee migrations, the increasing erosion of nation-states and international borders, and the empowerment of private armies, security firms and international drug cartels. . . . ’ 89 Or as Thomas Friedman argued, ‘What happens if they are all ignored—Somalia, Bosnia, NargornoKarabakh, and Haiti—and who knows how many others to come? One answer is the United States could wake up ten years from now and discover that the world has diplomatic cancer—a mass of failed states metastasizing in a cycle of violence and slowly sapping the strength of the international system.’ 90 All this chaos will not simply remain out there, rather it is coming to a neighborhood near you at a rather alarming rate and intensity. And, according to Samuel P. Huntington, American identity itself may be under threat. 91 Although it is possible to overemphasize the discontinuities between US policy in the 1990s and US policy post-9/11, the foreign policy elite’s dominant vision of the United States in the world shifted. The Clinton administration tended to see the world in ways that were closer to Keohane and Nye’s complex interdependence: while there were certainly challenges, globalization created opportunities for positive interaction through trade and cultural exchange. The dominant view in the 1990s was more Kantian: free trade and the enlarging of democracy would bring peace. By contrast, the Bush administration has tended to see the globalized world as one where the United States is more vulnerable to the coming anarchy and a ‘clash of civilizations.’ 92 There is room for multilateral action in this view, but it ought to be led by the United States. As Bush told the American Enterprise Institute, In confronting Iraq, the United States is also showing our commitment to effective international institutions. . . . The global threat of proliferation of weapons of mass destruction cannot be confronted by one nation alone. The world needs today and will need tomorrow international bodies with the authority and the will to stop the spread of terror and 88 Robert O. Keohane and Joseph S. Nye, Power and Interdependence: World Politics in Transition (Boston, MA: Little, Brown, 1977). 89 Robert D. Kaplan, ‘The Coming Anarchy’, Atlantic Monthly, February 1994, 273(2): 44–76: 46. 90 Thomas Friedman, ‘US Pays Dearly For an Education in Somalia’, New York Times, October 10, 1993, p. E1. See also Benjamin Barber, Jihad vs. McWorld (New York: Times Books, 1995) and Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996). 91 Samuel P. Huntington, Who Are We? The Challenges to America’s Identity (New York: Simon & Schuster, 2004). 92 Huntington, The Clash of Civilizations and the Remaking of World Order.

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chemical and biological and nuclear weapons. A threat to all must be answered by all. Highminded pronouncements against proliferation mean little unless the strongest nations are willing to stand behind them—and use force if necessary. 93

Further, the Bush administration, like previous US administrations, has decided that free trade and democracy will also bring peace, but the United States might first have to impose these institutions through military force. Indeed, according to President Bush there is only one path: ‘The 20th century ended with a single surviving model of human progress, based on non-negotiable demands of human dignity, the rule of law, limits on the power of the state, respect for women and private property and free speech and equal justice and religious tolerance.’ 94 In the first sentence of his preface to the National Security Strategy of 2002, President Bush says: ‘The great struggles of the twentieth century between liberty and totalitarianism ended with a decisive victory for the forces of freedom—and a single sustainable model for national success: freedom, democracy, and free enterprise’. 95 Those who do not adhere to the single model are necessarily, in the view of the administration, threats to the peace. In recent years, the dominant wisdom among the intellectuals and policymakers who populate the UN has also shifted to an emphasis on vulnerability over opportunity. Complex interdependence has become security interdependence. The UN Secretary-General and the High-level Panel have adopted in essence the same negative view of the consequences of globalization where interdependence and a globalized world are characterized by vulnerability. The emphasis is on transnational flows and actors that bring negative consequences. 96 Further, like the United States, the UN High-level panel urges more comprehensive early warning systems to identify threats to collective security. The early identification of threats should be institutionalized and linked with the development of preventive options. Prevention requires early warning and analysis that is based on objective and impartial research. Although the United Nations has some early-warning and analysis capacity scattered among different agencies and departments, the Secretary-General has not been able to establish any properly-resourced unit able to integrate inputs from these offices into early-warning reports and strategy options for purposes of decision-making. 97

It is obvious that early warning is better than no warning at all, but the emphasis on early warning could lead to the too early identification of an ambiguous or even harmless situation, capability, or statement as a threat. And, as with the 93

94 Bush at West Point. Bush, ‘President Discusses the Future of Iraq’. National Security Strategy, 2002, p. iv. 96 One argument for UN Security Council authorization is obviously to tie the hands of individual states. Individual states undertaking preventive war will be seen to be acting illegally if they forgo Security Council approval. This should limit the resort to individual preventive action. But, if the UN Secretariat and Security Council see threats in the same way as the United States, preventive action may not be so rare. Instead of the resort to force becoming increasingly rare, the resort to force may become more frequent if only because the challenges are understood to be more grave. 97 High-level Panel, A More Secure World, 37. 95

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US emphasis on ‘domain awareness’ the scope and nature of what constitutes a ‘threat’ is unclear. Are threats simply possible outcomes that the great powers who dominate the Security Council find undesirable? But while the vision of a dangerous world in need of hyper-vigilance, total awareness, and forceful policing is dominant, the UN Secretariat and the United States disagree about who should do the policing. The United States argues that, although it will consult with the UN, it cannot wait for the UN to act; ‘While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively. . . . ’ 98 The Secretary-General and the Highlevel Panel argue that the legitimacy gained through collective action via the UN Security Council is worthwhile. In sum, there is agreement now about the nature of the threats and the necessity to act preventively on occasion; the only disagreement is on whether the UN Security Council should be the primary actor, or if individual States can legitimately conduct preventive war without UN Security Council authorization. If the US foreign policy elite and UN security intellectuals are not far apart in their understanding of the causes of insecurity and their solution, some might argue that such a high degree of convergence suggests the world is as these highly educated and well-informed observers and policymakers suggest. ‘A degree of historical continuity always suggests that what is going on has to be understood, at least to some extent, in “structural” terms, and not just in terms of the particular personalities of those who happen to be in power at the time.’ 99 The world must be so insecure. Threat is immanent, and we must lower the threshold for action. If we all say it is so, it must be so. There is another possibility however. It could be that, instead of representing reality, these dominant characterizations of the threats to international peace and security are a set of beliefs and commonly held assumptions, a social construction, that constitutes a self-contained belief system. For example, in the year preceding the 2003 Iraq War, everyone knew Saddam Hussein had WMD capable of delivery within an hour and available for sale to terrorists for the right price. This certain ‘knowledge’ was taken for granted, even among the opponents of the war (save Scott Ritter and a few other skeptics of the Iraq threat who were roundly ridiculed). This consensus view on the nature of threats—which may or not be correct—is what Jutta Weldes calls a ‘security imaginary.’ 100 Building on the work of Cornelius Castoriadis, Weldes suggests that the ‘categories of common sense for foreign policy, the intersubjective and culturally established meanings on the basis of which 98

National Security Strategy, 2002, 6. Trachtenberg, ‘Preventive War and U.S. Foreign Policy’, 3. 100 I am not arguing, however, that the UN and the United States have identical security imaginaries. The US understanding of threat is rooted in an ideology of empire and unilateralism while the UN understanding of threat is rooted in and aspiration for international society and multilateral action. The views of US and UN security intellectuals overlap and converge on the question of the nature of threats. 99

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state officials make decisions and act, are provided by the security imaginaries of states.’ 101 As Weldes argues, the security imaginaries of states ‘provide . . . the cultural raw materials out of which representations of states, of relations among states, and of the international system are constructed. National interests, in turn, emerge out of these representations.’ 102 Weldes argues that it is ‘out of the security imaginary that the problems—the threats to national interests—faced by states are ultimately constructed.’ 103 Thus, ‘the security imaginary makes possible representations that clarify both for state officials themselves and for others who and what “we” are, who and what “our enemies” are, in what ways we are threatened by them, and how we might best deal with those threats.’ 104 The security imaginary is not simply an interpretation: as an understanding of the “real” world, the understanding of causal relationships among actors implies how to act. Weldes calls these “quasi-causal” rather than “causal” arguments because the relations and causal chains they posit may or may not be empirically valid on their own terms.’ 105 The convergence of the dominant US view of threats and the UN view is clearly seen in the consensus interpretation of the dangers of WMD. The Bush administration has pushed to criminalize the aspiration of states for nuclear, chemical, and biological weapons. Specifically, at the UN in September 2003, President Bush said: Outlaw regimes that possess nuclear, chemical and biological weapons—and the means to deliver them—would be able to use blackmail and create chaos in entire regions. These weapons could be used by terrorists to bring sudden disaster and suffering on a scale we can scarcely imagine. The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away. If such a danger is allowed to fully materialize, all words, all protests, will come too late. Nations of the world must have the wisdom and the will to stop grave threats before they arrive.

The UN Security Council, Bush argued, should ‘adopt a new anti-proliferation resolution. This resolution should call on all members of the U.N. to criminalize the proliferation of weapons—weapons of mass destruction, to enact strict export controls consistent with international standards, and to secure any and all sensitive materials within their own borders.’ 106 The UN Security Council in effect reproduced Bush’s argument against WMD in their Resolution 1540 of April 2004 and averred its ‘resolve to take appropriate and effective action against any threat to international peace and security caused by the proliferation of nuclear, 101 Jutta Weldes, Constructing National Interests: The United States and the Cuban Missile Crisis (Minneapolis, MN: University of Minnesota Press, 1999), 10. 102 Weldes, Constructing National Interests, 10. 103 Ibid., 14. 104 Ibid., 15. 105 Ibid., 13. 106 ‘President Bush Addresses United Nations General Assembly’, September 23, 2003, http://www.whitehouse.gov/news/releases/2003/09/20030923-4.html

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chemical and biological weapons and their means of delivery.’ 107 The UN resolution mentions that states should abide by their existing treaty commitments, including the NPT, but the focus is on export controls to prevent, or at least limit, the acquisition of WMD technologies by non-state actors. In emphasizing the latter, the Resolution 1540 does not emphasize the fact that existing nuclear weapons states are obliged under Article VI of the NPT to reduce and eliminate their nuclear arsenals. Thus, the UN Security Council implicitly reaffirms the view that only existing nuclear weapons powers may legitimately hold nuclear weapons. But this is only the dominant view. The world could be seen otherwise; namely, the thousands of nuclear weapons held by the great powers—the United States, Russia, France, Great Britain, and China—who are also veto-holding states on the Security Council, could be understood as a much greater threat. The concept of security imaginaries usefully recalls that threats are in the eye of the beholder. What is seen to be an imminent threat or distant threat depends on interpretation as much as there is an objective problem in the world ‘out there’. 108 On the other hand, use of the word ‘imaginary’ could be seen to imply an unreality or a phantastical element. Yet I am not suggesting that there are no real threats out there. Nuclear weapons are horrific in their indiscriminate and enormous destructive power. Nor am I suggesting that the ‘new security consensus’ is simply a matter of pessimism with respect to threats, though there is plenty of pessimism. Rather, threats must be interpreted and understood as threats; risks must be assessed and values must be assigned. The current dominant security imaginary is an interpretation of the world and a causal narrative about both the roots of, and responses to, contemporary problems whose core elements, most vividly evoked in Kaplan’s borrowed Dickensian language, are taken for granted among optimists and pessimists, ‘realists’ and liberals, unilateralists, and multilateralists. 109 And of course interpretations are not simply an understanding of the world, they lead to actions designed to ameliorate or eliminate perceived threats, which in turn leads to reactions by those we see as threats in the first place. Thus, the image of complex insecurity has become a self-reinforcing representation, a weltansahauung, that has led to the construction of its own system of security, which, I argue below, could create the insecurity it is designed to prevent. The content of the now dominant international security imaginary is the Hobbesian nightmare. The state of nature is fear and a war of all against all. Except for Hobbes, fear leads to the construction of a political community and the constitution of order; fear brings people out of the state of nature and into the state: ‘The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodius living; and a Hope by their Industry 107

UNSC Resolution 1540, April 28, 2004. See also the literature of operational codes and belief systems. 109 The dominant security imaginary also recalls South Africa’s military doctrine of the 1980s: total onslaught by the forces of communism and terrorism demanded a total national strategy of economic, psychological, political, and military response. 108

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to obtain them.’ 110 A sovereign political order is born. In contrast to Hobbes, under the now dominant international security imaginary, fear leads to the deconstruction, and for some states that are considered rogues, the total dissolution of sovereignty. Under the assumption of an environment of immanent threat, self-defense requires immediate and constant action to reduce the omnipresent threat. If the interests of the self are defined broadly, in global terms, then the self is potentially under threat everywhere. If ‘rogue’ states are serial aggressors, who cannot be deterred or negotiated with, then regime change is the only logical option. The distinctions between imminent and immanent, actual present and possible future, war and peace, self and other, combatant and noncombatant thus blur to the point of collapse. The institution with a preventive-war doctrine thus has no way to limit its wars of ‘preventive’ self-defense: potential future threats are many and grave and must, if possible, be eliminated. In sum, while there may certainly be cause for concern, the ‘nightmares’ may be, at least in part, in the eye of the beholder and therefore partly of our own making.

4.4. PREEMPTION AND PREVENTIVE WAR IN THE JUST WAR TRADITION The desire to promote international peace and security, and to strengthen international institutions and international society is vitiated by the policy of preventive war even if authorized or undertaken by the UN Security Council. But before this argument can be made, we must first consider the legitimacy and prudence of preemption and preventive war. Most contemporary scholarship equates preventive war—undertaken against a possible future threat—with aggression and therefore argues that it is illegitimate. Preemption and preventive-war doctrines held by Germany, France, and Russia before World War I were understood as contributing to the causes of the war. In part as a result of this interpretation, The Kellogg– Briand Pact 1928 outlawed war as an instrument of national policy and, in the interwar context, preventive war was equated with aggression. 111 But prior to the early twentieth century, opinion among legal scholars and philosophers of war and peace was often in favor of preventive war, or at least, not critical of those who undertook it. 112 Although the causes of the Peloponnesian War were extremely complex, it was understood and justified at least in part in terms of preventive war: ‘What made war inevitable was the growth of Athenian power and the fear which this caused in Sparta.’ 113 In the late sixteenth century, Alberico Gentili argued that ‘no one ought to expose himself to danger. No one 110

Thomas Hobbes, Leviathan (New York: Penguin, 1986), 188. Treaty Providing for the Renunciation of War as an Instrument of National Policy, Signed in Paris, August 27, 1928, entered into force July 24, 1929 Stat. 46, 2343, TS no. 796, 94 LNTS 57, copy at http://www.yale.edu/lawweb/avalon/kbpact/kbpact.htm 112 As Hew Strachan argues in ch. 1 in this volume, preventive war was the normative assumption in Europe during the seventeenth, eighteenth, and nineteenth centuries. 113 Thucydides, History of the Peloponnesian War tr. by Rex Warner (New York: Penguin, 1986), 49. 111

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ought to wait to be struck, unless he is a fool. One ought to provide not only against an Offense which is being committed, but also against one which may possibly be committed. Force must be repelled and kept aloof by force. Therefore one should not wait for it to come.’ 114 In the early seventeenth century, Francis Bacon wrote: ‘For certainly, as long as men are men, the sons, as the poets allude, of Prometheus, and not of Epimetheus, and as long as reason is reason, a just fear will be a just cause of a preventive war . . . ’ 115 And, as Bacon argues, ‘For there is no question, but a just fear of an imminent danger, though no blow be given, is a lawful cause of war.’ 116 More surprisingly, Immanuel Kant argues that in the state of nature states may act preemptively: states may initiate war in response to active violations or in cases where it ‘may be threatened.’ Kant argues, ‘This includes another state’s being the first to undertake preparations (ius praeventionis), or even just the menancing increase in another state’s power (by its acquisition of territory) (potentia tremenda).’ Kant suggests that ‘This is a wrong to the lesser power merely by the condition of the superior power, before any deed on its part, and in the state of nature an attack by the lesser power is indeed legitimate’. 117 However, Kant thought that international politics was not a simple state of nature. Rather, in Perpetual Peace and the Metaphysics of Morals, Kant argues that international relations were already closer to international society—where the rule of law and economic interchange and interdependence provide the conditions for a potential system of peace. 118 Thus, fully considered, Kant implies that resort to preemption and preventive war should be increasingly rare as international society developed. Further, conduct in war should promote international law: ‘Right during a war would, then, have to be the waging of war in accordance with principles that always leave open the possibility of leaving the state of nature among states (in external relation to one another) and entering a rightful condition.’ 119 Indeed, Kant’s argument implies that states that have a preventive-war doctrine are unjust: But what is an unjust enemy in terms of the concept of the Right of Nations, in which—as in the case in a state of nature generally—each state is a judge in its own case? It is an enemy whose publicly expressed will (whether by word or by deed) reveals a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible and, instead, a state of nature would be perpetuated. 120

In other words, while preemption might be justified in specific and limited circumstances, a preventive-war doctrine, in Kant’s view, fails to promote peace and 114

Gentili quoted in Richard Tuck, The Rights of War and Peace: Political Thought and the International Order From Grotius To Kant (Oxford: Oxford University Press, 1999), 18. 115 Bacon, quoted in Tuck, The Rights of War and Peace, 19. 116 Bacon quoted in Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), 77. 117 Immanuel Kant, The Metaphysics of Morals, introduction, translation, and notes by Mary Gregor (Cambridge: Cambridge University Press, 1991), 152–3. 118 Immanuel Kant, To Perpetual Peace: A Philosophical Sketch tr. by Ted Humphrey in Perpetual Peace and Other Essays (Indianapolis, IN: Hackett Publishing Co.: 1984), 107–43. 119 Kant, The Metaphysics of Morals, 153. 120 Ibid., 155.

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the rule of law, a key element of the just war tradition. Preventive war is thus really not preventive at all; it is an argument for aggression on the theory that others might one day be aggressive. How would Kant, the eloquent advocate of security through international organization, regard the notion of preventive uses of force under UN Security Council authorization? Kant is silent on the question of whether a League of Peace would be able to authorize preventive uses of force. Based on his arguments in Perpetual Peace, it is probably the case however that Kant would expect superior decision-making by a representative body which had to take public interests into account. The practice of justification, in his view, was a mere ‘exercise’ under nonrepublican orders. 121 Yet if this were Kant’s view (and I cannot know for certain what he would argue), it would be seriously flawed for reasons shall now discuss more fully. Here I will simply suggest that even a representative international body holding a preventive-war doctrine may tend to limitless preventive action under the ever-expanding logic of prevention. The authorization of preventive sanctions may yield to the authorization of preventive force. The UN Security Council is not outside the logic any more than an individual state. A doctrine that authorizes preventive war becomes a precautionary principle of limitless ‘early’ interventions. ‘But if the safety of the state lies at stake, our precaution and foresight cannot be extended too far.’ 122

4.5. ARGUMENTS FOR AND AGAINST PREVENTIVE WAR Those who argue in favor of preventive-war doctrines are essentially suggesting that the justifications for preemption work as justifications for preventive war. Yet, despite the fact that both preemption and preventive war are directed toward ‘future’ threats, the two conditions are not equivalent in salient respects. While preemption may sometimes be justified, preventive war is not justified. When is preemption justified and indeed prudent?

4.5.1. Preemption Preemption is more widely accepted than preventive war as legitimate and prudent. Briefly, the dominant view is that preemption may be considered legitimate under circumstances captured by Daniel Webster’s 1841 formulation: preemption is justified only when there is ‘a necessity of self-Defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.’ Webster was arguing that a British attack on a civilian US ship that had sold arms to Canadian rebels was illegal. Specifically, Webster argues: 121

Kant, To Perpetual Peace, 113.

122

Emrich De Vattel, The Law of Nations, b. III, ch. 3.

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It will be for that Government [the British] to show a necessity of self-Defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada,—even supposing the necessity of the moment authorized them to enter the territories of the United States at all,—did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the ‘Caroline’ was impracticable, or would have been unavailing; it must be shown that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of night, while moored to the shore, and while unarmed men were asleep on board, killing some and wound[ing] others, and then drawing her into the current above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror. A necessity for all this the government of the United States cannot believe to have existed.

Webster concluded that ‘if such things [as the attack on the Caroline] be allowed to occur, they must lead to bloody and exasperated war.’ 123 Webster’s criteria for legitimate preemption can thus be summarized not only as a response to immediate threats which pose great harm; preemption must also be a last resort, necessary, and attempt to discriminate between combatants and noncombatants. Building on my earlier arguments about preemption, I suggest that legitimate preemption could occur if four necessary conditions, rooted in the just war tradition were met. 124 First, if preemption was truly in self-defense, where the self is narrowly defined and defense is similarly narrowly construed. In other words, the self to be defended should not include imperial interest and defense is limited to a response to impending attack. Second, legitimate preemption should be a reaction to a credible fear of imminent attack. The attack should be imminent in two senses: it can be made manifest within hours or weeks unless action is taken to thwart it, and if one waits, there is no military option that would succeed in reducing or eliminating the threat. The use of force should occur only if by waiting, one loses the opportunity to act militarily. Of course, political options may work well after the opportunity for preemptive military action has occurred. This leads to the third and fourth criteria of success and necessity. Preemption is justified if it would succeed in reducing or eliminating an imminent threat. Fourth, preemption is justified if military force is necessary in the sense that only military force can accomplish the job and because military force is the last resort. Further, to be justified, the conduct of a preemptive action must adhere to traditional just war limits of proportionality (not doing more harm than the risk is worth) and discrimination between combatants and noncombatants. 123 Daniel Webster in a letter to Ambassador Fox, April 24, 1841, in Kenneth E. Shewmaker (ed.), The Papers of Daniel Webster: Diplomatic Papers Volume 1, 1841–1843 (Hanover, NH: University Press of New England, 1983), 62 and 67–8. 124 Neta C. Crawford, ‘The Slippery Slope to Preventive War’, Ethics & International Affairs, 17: 1 (March 2003), 30–6.

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As the preceding discussion shows, waging legitimate and prudent preemption suffers from epistemic demands that are not present when one side is simply reacting to an ongoing attack by another. Prior to an attack one has to know that an attack is coming or else preemption is not at all possible. An attack may not at all be considered by the other, or they may be incapable of posing a real military threat. But, one must also know that the attack is imminent in the two senses already discussed: that it is about to occur, and this is the last instance one can defend oneself with a probability of success against it. We must also know that no other means would have worked to forestall or deal with an attack. Further, for jus in bello limits to be complied with, those who act preemptively must know— prior to the other side’s actual attack—who was likely to be engaged in the assault and how much damage was likely to occur. Of course, such knowledge is not perfect in a purely reactive situation, but it is easier to judge proportionality and to discriminate between combatants and noncombatants after the other side has attacked. The chief argument in favor of preventive war is articulated clearly in the proverb ‘an ounce of prevention is worth a pound of cure.’ Or, as Gentili suggests, only a ‘fool’ would wait to be struck. But is the best defense a good offense? There are several problems with both the prospect of preventive war as a military doctrine, and the actual preventive uses of force. First, the preventive force framework assumes military force is required; it militarizes problems. Of course, nonmilitary tools might be used to defuse longterm problems, but prospect of the resort to preventive force by definition leads actors to assume that military force is necessary and required. The criteria that the Secretary-General and High-level Panel suggest for determining whether resort to preventive uses of force is justified asks the question of necessity, but this is done from within the framework of evaluating military force as an option. Second, the threat and use of preventive force increases insecurity: others may hasten their preparations to arm and defend themselves because they fear preventive attack. In other words, preventive doctrines may promote what I term a spiral of anticipation as the prospect of preventive war provides incentives for states to arm in anticipation that they will be the target of a military strike. The arming against potential preventive attack increases the pressure to conduct a preventive war. This is the familiar security dilemma spiral as described by Thomas Schelling, Robert Jervis, and others, but the preventive war spiral of anticipation is caused by less immediate provocation than a spiral caused by more immediate or imminent threat. Third, the use of preventive force assumes war is inevitable although the epistemic tests of knowledge that an attack is about to occur in the near future and that this is the last point to act with a probability of success have not been satisfied. 125 125 Of course, as suggested above, the last point to act militarily may not be the last point to act diplomatically. Thus, the decision-maker is in a paradoxical position: the last political resort may well occur long after the option of last military resort. Several factors will determine if the decision-maker

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In other words, unlike preemption, preventive force is undertaken with a long time horizon. But even if the other was intent on aggression at some point, precisely because the time horizon for realization of the threat is long, the situation may be open to change. War might not be inevitable and force may not yet be necessary. By contrast, preemption is legitimately undertaken only when a threat is imminent and grave. Advocates of preventive war must then determine how soon a threat can be made manifest, discerning the characteristics of an imminent threat as opposed to a distant one. Does the prospect of surprise, which may dramatically reduce or even eliminate the time to prepare and respond to imminent attack, really mean that all threats are immanent? Although it is possible to blur the line between present, likely, and possible future threats it is dangerous to do so. Fourth, the use of preventive force creates justified resentment on two grounds. On the one hand, the use of preventive force necessarily violates the just war and international law prohibition on harming noncombatants. By definition, a state or community, which has not acted militarily, is the target of preventive force, and some, if not all of those harmed are necessarily noncombatants, even if they might be one day. On the other hand, the use of preventive force says that the aspirations, grievances, and conduct of the target of preventive uses of force are by definition illegitimate. Those aspirations and the means the state might use to pursue those aspirations may well turn out to be legitimate, but to wage war preventively assumes and decides that the other’s grievances can never be legitimate. In this sense, preventive war is a like poison, a dishonorable stratagem, to use the words of Kant which reduces the prospect for peace. ‘Some level of trust in the enemy’s way of thinking must be preserved even in the midst of war, for otherwise no peace can ever be concluded and the hostilities would become a war of extermination.’ 126

4.6. THE FALSE PROMISE OF COLLECTIVE SECURITY THROUGH PREVENTIVE WAR The chief argument for confining the resort of preventive war to the UN Security Council is one of legitimacy and effectiveness and for this reason, the High-level Panel takes pains to ‘emphasize that the concerns we expressed about the legality of the preventive use of force in the case of self-Defense under Article 51 are not applicable in the case of collective action authorized under Chapter VII.’ 127 But this is precisely not the case: collective action does not eliminate or even significantly reduce the dangers of preventive war. has the courage to let the point of military last resort pass. First comes their assessment of whether the political situation is salvageable. Second, the level of fear and the gravity of the military consequences of political failure must weigh on the actor. 126

Kant, Perpetual Peace, 110.

127

High-level Panel, A More Secure World, 64.

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First, there is the logistical problem of identifying real threats and reacting to them in a timely manner. For practical reasons, in the near and medium term, powerful individual states will have superior capacity for intelligence gathering, the identification of threats, and the ability to wage war. In other words, the great powers will exercise effective control over what the UN Security Council does with respect to the use of force. On the one hand, it would be impractical and imprudent for an individual state to rely on the UN to provide for its defense, at least in the short term. While it is possible under Chapter VII of the UN Charter for the Security Council to field a military force to take action to enforce the peace, a standing force is not available for immediate deployment. Thus, either a state must rely on its own means or a regional treaty arrangement for defense, or it must wait for the UN Security Council to solve the political problem of getting a consensus to act, and then the UN must resolve the practical problem of fielding a sufficient military force cobbled together from states that volunteer their forces. Such political agreement was rare during the Cold War when the Security Council’s permanent five veto-holding members were divided ideologically, but it became more common during the post-Cold War period. When the UN Security Council has acted militarily to restore international peace, such as in response to Iraq’s occupation of Kuwait in 1990–1, it has relied on existing standing armed forces led by the military power that has provided the bulk of the force, in that case, the United States. The High-level Panel does not envision the development of a standing UN military. Instead, it urges those member states of the UN that have the capacity to deploy appropriate forces quickly to form units that can be tasked to UN missions. 128 But the advocates of a robust collective security role for the UN do not stress the logistical problems of quickly and efficiently fielding a sufficient force to wage preventive action. Rather, the promise of a turn to Security Council authorization for preventive force is normative and procedural. It is simply believed that the procedure of resorting to a public debate within a multilateral forum will necessarily improve the quality of deliberation and limit the resort of individual states to preventive uses of force for private purposes. Yet there are two closely related problems with this reasoning. First, membership on the UN Security Council will necessarily be restricted by some criteria. While there will not be uniformity of views on the Security Council, the range of views will be narrow because the criteria for membership will necessarily reflect the dominant perspective. Thus, there is no guarantee that private state interests will be trumped by a collective and disinterested view from the UN Security Council. As Walzer argues, What one looks for in numbers is detachment from the particularist views and consensus on moral rules. And for that there is at present no institutional appeal: one appeals to humanity as a whole. States don’t lose their particularist character merely by acting together. If governments have mixed motives, so do coalitions of governments. Some goals, 128

High-level Panel, A More Secure World, 69.

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perhaps, are cancelled out by the political bargaining that constitutes the coalition, but others are super-added; and the resulting mix is as accidental with reference to the moral issues as are the political interests and ideologies of a single state. 129

Even if the Security Council is reformed to include a larger number of permanent members, a restructured Security Council will still be dominated by the most powerful states and membership will likely still include states whose interests and world view are similar to those powerful states. The dominant power and the dominant ideology, in other words, will determine membership and world view. In other words, even an enlarged Security Council membership will have a difficult time thinking outside the dominant security imaginary. These likeminded states will tend to find the same behaviors threatening and tend to find the same sorts of evidence compelling (although their sense of urgency may be different). Revisionist states, which are by definition challenging the dominant framework, will be less likely to gain membership in the Security Council, and when they do, their numbers will be small. Which brings us to the second problem. A UN Security Council decision to authorize preventive military force may be perceived by observers as only slightly more legitimate than the action of an individual state. Rather, the UN may lose legitimacy as it comes to be understood by those who are subject to its decisions to use preventive military force as an imperial force, rather like nineteenth century systems of collective security the Concert of Europe or the more reactionary and conservative Holy Alliance. In other words, as ever, preventive war privileges the already powerful. In the nineteenth century, preventive war privileged the ‘balance of power.’ 130 In the twenty-first century, the preventive uses of force initiated or approved by the UN Security Council would necessarily preserve the current dominant conception and reality of political and economic order. In other words, there is no real objectivity or disinterestedness purchased by resort to the chambers of the United Nations Security Council. Further, the UN Security Council would be the judge of its own cause. There is no effective check against its use of force on behalf of the dominant view. Further, like the United States, an enlarged UN Security Council charged with taking action to secure ‘international peace and security’ against a long and increasingly interconnected list of threats will tend to see its interests as global and view revisionist states as threats to those interests. Only a decision taken by a super majority of the members of the UN General Assembly would meet the test of representativeness. But, in that case, a single abusive great power would be at risk of being sanctioned, if not becoming the object of preventive military force. Finally, none of the problems of the resort to preventive action by individual states is eliminated by the resort to preventive war under the authorization of collective security organization. Preventive use of force undertaken with Security Council authorization would still violate the just war prohibitions 129

Walzer, Just and Unjust Wars, 107.

130

Ibid., 106.

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of proportionality and discrimination between combatants and noncombatants and create resentment. Preventive use of force undertaken with Security Council authorization would still abbreviate the use of diplomacy and other truly preventive tools. A preventive-war doctrine held and enacted by the UN Security Council would still create insecurity as it both erodes the prohibition against preventive war and creates the incentive to arm and act before being acted on. Further, the possibility of the authorization of preventive uses of force by the UN Security Council gives member states the option to claim that the UN has failed to act quickly enough. Powerful individual member states may anticipate or claim to anticipate stalemate on the Security Council or the necessity for speed and then proceed to use preventive force. In sum, the use of preventive force, whether under the authorization of the UN Security Council or when undertaken by an individual or coalition of states without such authorization does not promote international peace and security. It in fact undermines an international order based on the rule of law that it is designed to protect. The Secretary-General and the High-level Panel are thus correct to emphasize primary prevention, but unwise to promote a doctrine of preventive uses of military force.

4.7. A BETTER ALTERNATIVE THAN COLLECTIVE PREVENTIVE ACTION? Rather than expanding the notion of legitimate resort to preventive uses of force, the UN Security Council should strictly limit preventive uses of force to prevention of planned genocide and large-scale aggression. And even here, primary prevention and then, if that fails, preemption should be the rule. Preventive uses of military force should be reserved for action for those cases of genocide or large-scale aggression when failure to act would eliminate even the possibility of militarily effective preemptive action. All other potential rationalizations for preventive use of military force should be delegitimized. Of course the advocates of preventive uses of force will argue that this allows grave threats time to gather. But I am not asking us all to be fools. Preventive uses of military force are probably never the only option for action. Rather, the alternative to preventive war is targeted sanctions and comprehensive or targeted arms embargoes. 131 Arms embargoes have several virtues. Most importantly, they deny arms and weapons-making material and technology to the target. But, contrary to popular belief, arms embargoes do not have to be 100 percent leak proof to have significant effects on the target. Even partially effective embargoes increase the costs to the target of arming as they pay the sanctions busting premium, and 131

See Walzer, Just and Unjust Wars, 81.

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they tend to shift political power within target as the target resists the sanctions. 132 Meanwhile, the economic, diplomatic, and political tools of true prevention would have greater time to work as the potential aggressors are stalled and weakened by the arms embargo. 132

Neta C. Crawford, ‘How Arms Embargoes Work’, in Neta C. Crawford and Audie Klotz (eds), How Sanctions Work: Lessons from South Africa (London/New York: Macmillan/St. Martin’s Press, 1999), 45–74.

5 Justifying Preventive War Allen Buchanan

5.1. RETHINKING THE MORALITY OF PREVENTIVE WAR Preemptive war aims to avert an imminent harm. Preventive war aims to avert a harm that is more temporarily distant. Mainstream just war theory concedes that preemptive war can sometimes be justified, although its permissibility in international law is contested. Both mainstream just war theory and international law prohibit preventive war. 1

5.1.1. The Prima Facie Case for the Justifiability of Preventive War On the face of it, the idea that preventive war can be justifiable, at least when it is waged in self-defense, seems quite commonsensical. As Jeff McMahan has pointed out, there is a straightforward sense in which all self-defensive action is preventive. When you strike a person who is currently attacking you, your aim, so far as you are acting in self-defense, is to avert any further harm the attacker may do you; it is too late to defend yourself against the harm he has already caused. There seems to be no obvious bar to using force to defend oneself against an unjust harm that will occur further in the future rather than the harm that one expects in the next few seconds when an attack is already underway. Of course, one might be more likely to be mistaken about whether someone is going to attack in the distant future than about whether he is going to attack in the next moment, but that would only warrant special caution; it would not rule out preventive action. At least in the case of individual self-defense, then, it seems that mere temporal distance is not sufficient to cancel the right of self-defense, understood as the right to use proportional force, when necessary, to avert the unjust infliction of a serious harm on oneself. If the use of lethal force can be justified to avert an imminent harm, then presumably it can be justified to avert a harm that is just slightly more temporally distant than an imminent harm, and so on. 1 This is not to say, of course, that there are no endorsements of preventive war in the just war tradition. The claim is more modest, namely, that in general thinkers in that tradition have tended to find preventive war unacceptable.

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McMahan reinforces this intuition by appeal to a hypothetical case, the Paralysis Example. 2 You find conclusive evidence that a villain has a well-thought-out plan to murder you when you become paralyzed and are unable to defend yourself, a few weeks from now. For whatever reason, you are not able to rely on the police or others to protect you; you can only avert the lethal unjust harm by using lethal force against the villain even though the harm he intends to inflict on you is not imminent. McMahan concludes that under these circumstances you would be morally justified in using preventive lethal force in self-defense. This conclusion seems to be cogent. McMahan’s example is one of individual self-defense, not war. Robert O. Keohane and I offer an example in which collective preventive force sufficient to count as an act of war seems intuitively justifiable. 3 In the Lethal Virus case, country A has good evidence, from multiple reliable sources, that an international terrorist group that has already committed several deadly attacks on innocent populations has in its possession a lethal and extraordinarily contagious virus (for which there is presently no treatment) which it will eventually release in a major city. There is no reason to believe that the release of the virus is imminent, but there is good reason to believe that once the virus leaves the terrorists’ remote mountain stronghold the chances of intercepting it are poor. A missile strike against the remote mountain stronghold, which lies within the borders of country B, will destroy the virus and only kill members of the terrorist organization. Surely under these circumstances it would be justifiable to use lethal force preventively and the fact that force would be deployed collectively against a group, rather than by an individual against another individual is immaterial. If there is doubt that a large-scale military action against a nonstate terrorist group counts as war, consider instead the following case. Country A has recently engaged in aggressive war against country C and all indications are that its commitment to aggression continues unabated. Country B has very good evidence that it is next on country A’s target list and also has good evidence that A has only refrained from attacking B so far because A has not yet completed a packet of new missiles that can evade B’s missile-defense system, utterly destroy B’s power to resist A’s invasion, and kill many of B’s people. B also has good evidence that unless it destroys several facilities that make an especially critical part for the missile system now, the critical part will be distributed to a large number of well-protected missile-production facilities around country A and that B’s chances of preventing A’s missile attack will be poor. The missile attack, if it occurs, will be at least six months from now so the harmful attack is not imminent; but to prevent it, B must strike now.

2 Jeff McMahan, ‘Preventive War and the Killing of the Innocent’, in Richard Sorabji and David Rodin (eds), The Ethics of War: Shared Problems in Different Traditions (Aldershot, Hants, UK and Burlington, VT: Ashgate Publishing, 2006), pp. 173–4. 3 Allen Buchanan and Robert O. Keohane, ‘The Preventive Use of Force: A Cosmopolitan Institutional Perspective,’ Ethics & International Affairs, vol. 18, no. 1, 2004, p. 4.

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Such examples suggest that the point McMahan invokes the Paralysis Example to make is not confined to individual acts of self-defense. Preventive war seems to be morally justifiable.

5.2. ARGUMENTS AGAINST PREVENTIVE WAR The Paralysis Example, the Lethal Virus example, and the Missile Attack example at the very least show that a strong argument is needed to rule out the justifiability of preventive war. In fact, two types of arguments are advanced by those who deny that preventive war is justifiable: those that contend that the inherently speculative character of the preventive-war justification makes it too subject to error and abuse, and those according to which, quite apart from the problems of error and abuse, preventive war is unjust, because it involves a violation of the rights to life of the targets of preventive action, since, by hypothesis, they have not (yet) done anything wrong. The former type of argument is usually called consequentialist, the latter rights-based. The strength of the consequentialist objection is its refusal to be seduced by highly sanitized, rare examples like those of the Lethal Virus and Missile Attack examples. These examples are highly sanitized in that they assume highly accurate information about the intentions and capabilities of the target of preventive action and also assume, implicitly, that there is no reasonable prospect for averting the future attack without using preventive force. (Similarly, one should be wary of attempts to justify torture simply by appealing to the intuitive permissibility of torturing an individual whom one knows (not merely suspects) to be a terrorist who possesses information which, if one can get it, will (not may) allow one to avert the destruction of millions of innocent people).

5.2.1. The ‘Bad Practice’ Objection However, the consequentialist label is misleading, because it lumps together two different objections based on the inherently speculative character of the preventive-war justification, only one of which is consequentialist in any interesting sense. The first objection, which more properly warrants the title ‘consequentialist’, appeals to the supposedly bad consequences, not of the particular preventive act, but of the general acceptance of a principle that allows preventive war. The idea here is that because the preventive-war justification is inherently speculative, the general acceptance of a principle allowing preventive war would lead to intolerable abuse and error. Too many wars would be undertaken on the basis of false or unjustified predictions of future harm or because the prospect of future harm would be used as a pretext for aggressive war, or both. Call this the ‘bad practice’ objection. The second objection that is lumped together with it under the label ‘consequentialist’, unlike the ‘bad practice’ objection, does not

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rely upon any prediction about the bad consequences of the general acceptance of a principle that allows preventive war. Rather, it holds that, given the inherently speculative character of the preventive-war justification, it is morally irresponsible for state leaders to invoke it to undertake anything so morally momentous as war. Call this the ‘irresponsible act’ objection. As it stands, the ‘bad practice’ objection is not in fact an argument to show that it is wrong to engage in preventive war; at most it shows that general acceptance of a principle that allows preventive war would be wrong. To make it an argument that shows that it is wrong to engage in preventive war, one would need to add one or the other of two premises, each of which is highly disputable: (a) it is always wrong to act on a principle which, if generally accepted, would produce unacceptable results, or (b) every case in which a country engages in preventive war in fact significantly increases the probability that other states will come to accept the principle that preventive war is justified (and thereby will contribute to a bad practice). The difficulties with premise (a) are well-known from the critical literature on the role of generalization principles in ethical judgment. The most obvious problem is that there are innumerable acts that are permissible even though it would be disastrous if everyone did them—for example, devoting one’s life to the solution of the Trolley Problem, or closing one’s eyes for one minute at a particular time of day. Premise (b) is too sweeping a generalization to be plausible. Whether a particular country’s engaging in preventive war will significantly increase the probability that others will engage in preventive wars will depend on a number of contingent factors. The relevant question, however, is not whether it will significantly increase the probability of preventive wars, but rather whether it will significantly increase the probability of unjustified preventive wars. To assume that an increase in the probability of any preventive wars, just or unjust, is unacceptable, is to beg the question at hand, namely, ‘Is preventive war ever justified?’ Whether a particular case of preventive war will significantly increase the probability of unjustified preventive wars in the future may depend upon how the particular case is generally regarded. Especially if there is a well-entrenched norm against preventive war, a single instance may not increase the probability of future occurrences, if the country engaging in preventive war makes a convincing case that the circumstances warranted an exception to an otherwise sound prohibition against prevention. A plausible justification, along with an acknowledgment that the general prohibition is sound, may avoid a significant increase in the chance of unjustified preventive war. It is worth making explicit why premise (b) is formulated using the notion of significantly increasing the probability of future (unjustified) preventive wars. The point is that we cannot assume that if a particular preventive war does increase the probability of future unjustified preventive wars, it is thereby impermissible. A small increase in the probability of future unjust preventive wars might be an acceptable price to pay to prevent a sufficiently awful harm.

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Any state contemplating engaging in preventive war should, of course, take seriously the possibility that its action will be taken to have precedential value and should also be aware that others may either unwittingly or deliberately misrepresent the character of the act they take as a precedent. For example, under certain circumstances, a country might be justified in engaging in preventive war, but only because of exceptional circumstances; yet other countries might believe or claim to believe that a more general precedent was being set, that a broader permission to engage in preventive war was being established, one that did not limit permissible preventive war to the exceptional circumstances. As I suggested earlier, however, how great this risk of ‘false precedent’ is in any particular case will depend upon several factors, including how well-entrenched the prohibition against prevention is and how good a job the country engaging in prevention does in making the case that its action was justified only because of exceptional circumstances and that those circumstances are very unlikely to be repeated. Although it may be true that the most powerful, influential countries run the greatest risk of setting a dangerous precedent by their actions, they are also the ones that are best able to shape the content of the precedent that is set. Once we see how problematic premises (a) and (b) are, it becomes clear that the first ‘consequentialist’ argument against preventive war, the ‘bad practice’ argument, at best gives reason to be very cautious about engaging in preventive war, not conclusive reasons against its justifiability. It may be that those who have argued against preventive war by appealing to the fact that the preventivewar justification is prone to error and abuse, but who have done so without making explicit and defending either premise (a) or premise (b), have failed to distinguish clearly between two quite different tasks that might be pursued under the heading of just war theorizing. The first is to determine the moral status of various acts of war; the second is to formulate appropriate constitutive rules for a morally defensible practice of war-making. (Jeff McMahan has noted this crucial distinction and made it clear that his just war theorizing is concerned primarily with the former task). Unless supplemented with a convincing defense of either premise (a) or premise (b), the ‘bad practice’ objection cannot show that any particular act of making preventive war is wrong. As it stands, the ‘bad practice’ argument is only plausible as an objection to the general acceptance of a principle allowing preventive war, whether as a formal principle of international law or as constitutive rule of an informal practice. It is important to understand that this first objection cannot provide a conclusive argument against general acceptance of a principle allowing preventive war. For as Robert O. Keohane and I have argued elsewhere, appropriate institutions for making the decision to use preventive force may significantly reduce the risk of abuse and error, both in the decision itself and with respect to its precedential effects. Whether a practice that allows preventive war under certain circumstances would be an unacceptable practice depends upon how the practice is institutionalized. 4 If institutional safeguards can adequately 4

Allen Buchanan and Robert O. Keohane, ‘The Preventive Use of Force’, 1–22.

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address the problem of abuse and error, then the practice may be morally acceptable.

5.2.2. The ‘Irresponsible Act’ Objection This second argument does not rely, even implicitly, on premise (a) or premise (b). It is at least the right sort of argument to show, not just that general acceptance of a principle that allows preventive war is wrong, but that it is wrong to engage in preventive war. The intuitively plausible idea behind the ‘irresponsible act’ argument is that, other things being equal, the higher the stakes in acting and in particular the greater the moral risk, the higher are the epistemic requirements for justified action. The decision to go to war is generally a high stakes decision par excellence and the moral risks are especially great, for two reasons. First, unless one is justified in going to war, one’s deliberate killing of enemy combatants will be murder, indeed mass murder. Secondly, at least in large-scale modern war, it is a virtual certainty that one will kill innocent people even if one is justified in going to war and conducts the war in such a way as to try to minimize harm to innocents. Given these grave moral risks of going to war, quite apart from often substantial prudential concerns, some types of justifications for going to war may simply be too subject to abuse and error to make it justifiable to invoke them. The ‘irresponsible act’ objection is not a consequentialist objection in any interesting sense. It does not depend upon the assumption that every particular act of going to war preventively has unacceptably bad consequences (whether in itself or by virtue of contributing to the general acceptance of a principle allowing preventive war); nor does it assume that it is always wrong to rely on a justification which, if generally accepted, would produce unacceptable consequences. Instead, the ‘irresponsible act’ objection is more accurately described as an agent-centered argument and more particularly an argument from moral epistemic responsibility. The ‘irresponsible act’ objection to preventive war is highly plausible if— but only if—one assumes that the agents who would invoke the preventivewar justification are, as it were, on their own in making the decision to go to war preventively. In other words, the objection is incomplete unless the context of decision-making is further specified. Whether the special risks of relying on the preventive-war justification are unacceptably high will depend, inter alia, upon whether the decision-making process includes effective provisions for reducing those special risks. Because the special risks are at least in significant part epistemic—due to the inherently speculative character of the preventive warjustification—the epistemic context of the decision is crucial. Because institutions can improve the epistemic performance of agents, it is critical to know what the institutional context of the preventive-war decision is, before we can regard the ‘irresponsible agent’ objection as conclusive. Like the ‘bad practice’ argument, this second objection to preventive war is inconclusive because it does not consider— and rule out—the possibility that well-designed institutions for decision-making

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could address the problems that would otherwise make it irresponsible for a leader to invoke the preventive-war justification.

5.3. THE INSTITUTIONAL APPROACH TO PREVENTIVE WAR Robert O. Keohane and I have argued that a multilateral accountability regime could significantly reduce the special risks of the preventive-war justification, chiefly by providing incentives and deliberative processes that would elicit accurate information about the supposed risk to be averted by preventive action and reduce the risk that the preventive-war justification would be invoked to rationalize aggressive action. 5 The institutional arrangement we favor includes the following key elements. First, it must be multilateral, for the simple reason that no single state can be counted on fully to take into account the legitimate interests of others, especially when contemplating the use of military force. Secondly, the institutional procedure for making the preventive-war decision must satisfy conditions of ex ante accountability: all the relevant issues and options (including the nonmilitary options) must be explicitly discussed, under conditions that promote principled deliberation and reduce the risks of strategic bluffing, and under the assumption that the current decision will have precedential value for future cases. All parties to the discussion are to have equal standing to make proposals and to challenge proposals and justifications offered by others. In addition, the decisionmaking body must include diverse interests; it should not be restricted, for example, to states from one geographical area or only to rich states. We also believe, though this is not essential to the general idea of our proposal, that only states that meet minimal standards of democratic governance and that do not have a recent record of serious violations of basic human rights should be allowed to participate in the institution. (Here it is worth emphasizing that these conditions are intended only as a rather minimal filter; membership would not be restricted to a few states, to ‘Western style’ democracies, or to the most powerful or ‘developed’ countries). Thirdly, there must be effective provisions for ex post accountability. The state or coalition of states that engage in preventive war must come back to the decision-making body with a full report of their actions. They must also allow an impartial commission, appointed by the decision-making body or some other appropriate body (e.g. a well-respected international agency or nongovernmental human rights organization) unhindered access to the site of the military action as soon as possible. The aim of these requirements is to hold the states that engage in authorized preventive action accountable for the validity of the justifications they offered ex ante for using preventive force, including especially the accuracy of the information about the risk to be averted that they presented in making the case for preventive action. 5

Allen Buchanan and Robert O. Keohane, ‘The Preventive Use of Force’, 1–22.

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5.3.1. Attaching Costs to Flawed Decision-making Meaningful accountability can only be achieved, we argue, if significant costs are attached to a negative ex post evaluation, by an impartial body, of the justification given ex ante for using preventive force. For example, those who engaged in the preventive action would be required to compensate those whom they harmed and to bear all or most of the cost of repairing damage to the target country’s infrastructure caused by the preventive attack. In addition, they would not be allowed to control the political situation in the target country or to determine the allocation of aid or the awarding of contracts to firms offering services for the reconstruction effort. Just as important, a negative evaluation ex post would impose significant reputational costs, one effect of which would be to make it more difficult for the states in question to convince the decision-making body to authorize preventive action in the future.

5.3.2. Feasibility Although I cannot develop the argument at length here, Keohane and I also argue that such an institutional arrangement should not be dismissed as utopian. Potential wielders of preventive force would have a strong incentive to submit to the constraints of the accountability regime: doing so would solve what might otherwise be an insurmountable credibility problem and by gaining credibility they would be much more likely to secure military allies and cost-sharers. States that are not themselves likely to propose preventive action but who appreciate its special risks and wish to restrain the action of powerful states would also have an incentive to help create the needed institution. Finally, domestic forces that are concerned to constrain their own country’s recourse to force generally, and who are especially impressed by the dangers of preventive action, would have an incentive to pressure their governments to participate in the accountability regime and, to the extent that they must be responsive to domestic constituencies, this would in turn give the government an additional reason to participate. In these ways, the creation and maintenance of an accountability regime could become a focal point for coordinated action by actors with diverse and even conflicting interests. This institutional approach to just war theory relies upon the idea of the division of labor, in two distinct ways. First, achieving responsible decision-making is seen as a matter of getting the right combination of norms and institutions. With better institutions, it may be possible to replace a blanket norm prohibiting preventive war under any circumstances with a more nuanced norm that allows preventive war if the decision to engage in it is reached through an appropriate institutional process. Secondly, there can and presumably should be a division of labor between domestic and international (or regional) institutions. The weaker a state’s own institutions for deciding to go to war are, the greater the need for guidance provided by multilateral institutions, other things being equal, and vice

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versa. In this regard the case of preventive-war decisions may be the limiting case in which the risks of abuse and error are so high that it is hard to imagine how domestic decision-making institutions could ever be sufficient, even if they were much more effective than those that now exist. The general point, however, is that the answer to the question of whether preventive war is justified depends upon the institutional context and both domestic and multilateral institutions must be taken into account. In a more recent paper that builds on this work with Keohane, I have argued that whether the reduction of the risk of error and abuse that an accountability regime of the sort we outline would achieve is sufficient to make it responsible to invoke the preventive-war justification depends upon the costs of continuing to adhere to the prohibition on preventive war. 6 For present purposes, the most important conclusion of this institutionalist approach is that preventive war can be justifiable under conditions in which, relative to the costs of maintaining the prohibition on preventive war, the special risks of invoking the preventive-war justification are adequately reduced by appropriate institutional arrangements that are not only feasible but can be created without excessive cost. In brief, the ‘irresponsible act’ objection to preventive war does not show that preventive war is never justifiable; it only shows that it is irresponsible to invoke the preventive-war justification under conditions in which appropriate institutional arrangements for making the preventive-war decision are not available or, if available, are not utilized. The institutional approach also provides a rebuttal to the ‘bad consequences’ objection. A country that subjected its attempt to justify preventive war to the institutional procedure we prescribe would not be guilty of invoking a justification whose general acceptance would produce unacceptable consequences. Nor is there reason to believe that a decision to engage in preventive war that was made according to the sort of institutional procedure Keohane and I outline would increase the incidence of erroneous or abusive uses of the preventive-war justification; on the contrary, the availability of the procedure would both increase the probability that those who complied with it would make good decisions and provide a basis for criticizing and constraining those who decided on preventive war without going through the procedure. The accountability regime we recommend could form the basis of a morally defensible practice regarding preventive war. The results of the analysis so far can be summarized as follows. Neither the ‘bad consequences’ nor the ‘irresponsible act’ objections show that preventive war is unjustifiable. Both objections can be met if the decision to engage in preventive war is made within an institutional framework that adequately addresses the special risks of error and abuse which the inherently speculative character of the preventive-war justification involves. So, if preventive war is morally prohibited depends upon whether the other, ‘rights-based’ objection is sound. I now want to 6

Allen Buchanan, ‘Institutionalizing the Just War’, Philosophy & Public Affairs, vol. 34, no. 1, 2006, p. 21.

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argue that there are in fact two quite different ‘rights-based’ objections and then evaluate them in turn.

5.4. TWO ‘RIGHTS-BASED’ OBJECTIONS TO PREVENTIVE WAR

5.4.1. The Simple ‘Rights-Based’ Argument This objection to preventive war asserts that there is a morally crucial difference between using force against a presently occurring or imminent attack, on the one hand, and using force preventively on the other. In the former cases, the target of preventive action has done or is doing something wrong (already struck a blow or is in the process of striking one, e.g. by launching missiles or mobilizing troops for attack). In the latter case, the target of preventive force has not done anything wrong, so attacking him violates his right not to be attacked. The simple rights-based objection begs the question at issue, namely, whether it can ever be justifiable to use lethal force to prevent an attack that is neither presently occurring nor imminent. There is a right not to be unjustly attacked, but the question is whether that right is violated by preventive force. 7 Reflection on the law of conspiracy indicates that using force against someone who has not yet committed a wrongful harm need not violate his rights. The elements of conspiracy include a specific intention to do wrongful harm and an agreed plan of action to produce the harm. In many jurisdictions there is also the requirement that some initial step to implement the plan has been taken. There is no time limit on the execution of the plan, so the wrongful harm need not be imminent. The law of conspiracy explains how someone can have done something wrong, namely, imposed an unjust risk on others, without actually harming or being about to harm. 8 And to the extent that we believe that enforcement of the law of conspiracy, including the use of deadly force when necessary, is justified, it seems that the moral plausibility of the law of conspiracy refutes the simple ‘rights-based’ argument against preventive war. The analogy with the law of conspiracy takes us only so far, however. It only shows that if something like the elements of the crime of conspiracy were present in the case of a state or a terrorist group conspiring to commit a massive unjust harm, it would be justifiable to use force to arrest and punish them, and to use lethal force against them if they resisted arrest, if this were necessary to stop them. In the domestic case, the use of lethal force against conspirators is a last resort and is administered by public officials subject to judicial scrutiny and other forms of accountability, while in the preventive war this is not the case. It should be clear that this objection to the use of the analogy with the crime of conspiracy to indicate the moral justifiability of preventive war only applies 7

This and the following paragraph draw on Buchanan and Keohane, ibid., pp. 6–7. See Suzanne Uniacke’s valuable discussion of the conditions under which an agent can pose an actual threat of future harm in ch. 6 in this volume. 8

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to recourse to preventive war that is not constrained by appropriate institutional safeguards. Rather than being an objection to the institutional approach to preventive war, it merely highlights the virtues of that approach, agreeing with the latter’s fundamental assumption that the special risks of invoking prevention as a justification for the use of force requires that we subject the decision-making process to a system of institutional safeguards. Thus, to the extent that an institutional scheme (such as the one Keohane and I propose) provides accountability comparable to that which exists in a domestic system in which the law of conspiracy is enforced under the scrutiny of an independent judiciary, the conspiracy analogy holds. In both the domestic case and in the international accountability regime, there is an independent, principled, and comparatively impartial determination of whether the use of force against conspirators is justified. Of course, the accountability regime is not identical to a domestic judicial determination, but it would be a mistake to assume that there is only one way to achieve the needed accountability. The key point is that where the decision to use preventive force is properly constrained by institutions properly designed to reduce the special risks of preventive force justifications and where the target of prevention has imposed an unjust risk, the use of preventive force need not violate the target’s rights.

5.4.2. The Failure to Discriminate Argument There is a more subtle and serious ‘rights-based’ objection to the justifiability of preventive war. Unlike the simple ‘rights-based’ objection, it does not make the mistake of assuming that those who conspire harm are not liable to attack unless the harm is imminent. Instead, the claim here is that even if the decision to make preventive war is undertaken within the sort of accountability regime that Keohane and I recommend and even if the analogy with the crime of conspiracy is sound, preventive war is not justifiable, only preventive attacks against the conspirators is justifiable. 9 The point of this objection is that the conspiracy analogy can only show that those who conspire are imposing an unjust risk on us, and that consequently it is only they who are morally liable to preventive attack, but that when we make preventive war we will be unjustly attacking some, perhaps many, enemy soldiers who had no part either in devising the malevolent plan nor in taking an initial step toward its execution. Indeed, when we engage in preventive war, we will be attacking soldiers who do not even know that they are at war or are about to be at war. Call this the ‘failure to discriminate’ rights-based objection. In my judgment, this is the most serious moral objection to preventive war. Yet I do not think it is capable of showing that preventive war is never justifiable. 9 Steven Lee, ‘A Moral Critique of the Cosmopolitan Institutional Proposal’, Ethics & International Affairs, vol. 19, no. 2, 2005, p. 105.

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To gauge the force of the failure to discriminate objection we need to distinguish carefully among several different cases of preventive war-making. Case 1: The Missile Site. The leaders of country A plan to launch a surprise nuclear attack against country B from a missile base in the interior of country A. If country B waits till the missiles are fully operational it runs a high risk of utter destruction, because once launched the missiles cannot be intercepted. The missiles can be destroyed, and the threat averted, by a missile attack on the site. The personnel at the missile site know that the purpose of the construction is to launch an aggressive attack. This case is the least difficult. The failure to discriminate objection does not apply, because the only people who will be killed by the attack on the missile site can properly be described as being among the conspirators. Case 2: The Underground Missile Site. The same scenario as in Case 1, except that the missile base is deep underground and cannot be destroyed by air attacks. The only way for country B to avert the deadly nuclear attack is to invade country A and destroy the missiles from the ground before they are operational. However, to reach the missile site, the troops of country B will have to fight and defeat soldiers of country A. These soldiers are not conspirators—they do not know the conspiracy exists—and they will not be involved in the execution of the conspiracy, that is, the arming and firing of the missiles. These soldiers of country A might be called ‘innocent obstacles’ to successful preventive action on the part of B. Notice that in this case it may not be plausible to describe the unwitting enemy soldiers as ‘collateral damage,’ and to invoke the doctrine of double effect. The problem with this characterization is that it seems a stretch to say that their deaths are the merely foreseen but unintended consequence of destroying the missiles. Instead, it might be more accurate to say that one intends their death as a means of averting the threat of nuclear attack. Nor can one easily say that they are being killed by not being targeted. In these respects, the ‘innocent obstacles’ in Case 2 are not like neighboring noncombatants who are killed by strategic bombing of military targets. So neither the distinction between the targeted and the nontargeted, nor the appeal to the doctrine of double effect convincingly removes the worry that they are unjustly killed. Nonetheless, the case can be made that it can be justifiable to launch a preventive war that will require the killing of such ‘innocent obstacles’, if an appropriate institutional procedure for making the decision to engage in preventive war is followed and if the following conditions are satisfied: (a) the attack on the ‘innocent obstacles’ is necessary to avert the harm, (b) conscientious efforts are made to reduce the harm to the ‘innocent obstacles’, even if this involves significant costs to country B, and (c ) a strong proportionality requirement is satisfied, that is, the harm to be averted by the preventive action is not only very great but significantly greater than the harm to the ‘innocent obstacles’. If these conditions were satisfied, it would be implausible to say that in attacking the ‘innocent shields’ the forces of country B are treating them as mere means

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or disregarding the fact that they are not among the conspirators. Instead, a more accurate characterization would be that this is a case of ‘moral necessity’, of conscientiously choosing the lesser evil to avert a much greater evil. Furthermore, satisfying the second condition would require reasonable efforts to inform the ‘innocent obstacles’ that the attack was going to be made, as a last resort, to thwart the future unjust attack rather than as an act of aggression, to urge them to surrender, and to give them credible assurances that they will be treated well if they do surrender. Thus one major concern about preventive action would be allayed: it would not be the case that the soldiers who were attacked would not know that they were at war or about to be at war. If an institutional procedure like the one Keohane and I recommend were followed, and the fact that it was being followed were widely publicized, this would lend credibility to the effort to inform the ‘innocent obstacles’ that the coming attack was a justified act of prevention, not aggression. In addition, the same multilateral accountability regime within which the decision to make preventive war was made could help provide credible assurances that if the ‘innocent obstacles’ surrendered, they would be treated well. It seems implausible to maintain the permissibility of inflicting ‘collateral damage’ on nonmilitary personnel and at the same time to insist on the absolute impermissibility of using military force against military personnel who continue to stand in the way of the removal of a massive unjust threat even after they have been put on notice that they will be liable to attack if they do not step aside. It might be the case that efforts to inform the ‘innocent obstacles’ that they are about to be attacked and ought to step aside would give the conspirators a lethal advantage by prompting them to step up the efforts to make the missiles operational. However, at this point we are no longer in the realm of preventive war, but rather war to stop an imminent attack. I conclude that in situations like Case 2, preventive war could be morally justified. Case 3: a broad-based, public conspiracy. Country A has over the last decade become increasingly militant and aggressive. The government publicly acknowledges aggressive aims (it demands Lebensraum for its growing population or claims a right to the better-resourced lands of neighboring infidels) and the recruiting and training of the military includes the unambiguous message that the army is not just for defense, but for attack—for the creation of an empire, for example. It is, in fact, common knowledge among the general population that the military forces are being built up for the purpose of conquering other countries. The government of country A, in cooperation with the leaders of A’s military, is conspiring to commit aggression against the first of what they hope will be a series of victims. They have a definite plan of attack, with a specific intent to do unjust harm on a massive scale, and they have taken an initial step to execute the plan. However, most members of the military, including those who would be killed or hurt by a preventive attack to thwart the aggression, do not know of the existence of the plan; they only know—or at least ought to know—that their country has aggressive goals and that they, as members of the military, will be called on to carry

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them out. Under these conditions, even if many members of country A’s military are not themselves involved in the conspiracy, that is, are not apprized of the specific plan of aggression against the first country on the ‘hit list’, it seems a stretch to say that they are ‘innocent obstacles’ to preventing the aggression, for two reasons. First, at some future point, unless prevented from doing so, they will participate in the aggressive action; hence they are not merely obstacles to be overcome in order to get at those who will commit aggressive action. Their government leaders and military commanders are counting on their participation; it is an essential component of the plan. Second, A’s military personnel know—or should know— that they are part of a military apparatus that is directed toward future aggression, even if they are unaware of any specific plans. Hence it is profoundly misleading to say they are innocent and to suggest that they have the same moral status as innocent civilians who happen to stand between opposing armies. It is important to emphasize that Case 3 is not fanciful. It is a fairly accurate description of the condition of the German Army in 1938 and possibly as early as 1936. With some hesitation, I now want to focus more closely on the question of the innocence or, more accurately, the nonculpability, of military personnel. I hesitate because I am sensitive to the inhuman demands that are put on ordinary soldiers in wartime and because I am also aware that soldiers are usually quite young and subject to powerful pressures, psychological and often more tangibly coercive, to join the military and, when they are members of it, to obey orders. Such sensitivity to the predicament of ordinary soldiers can go too far, however, in effect either robbing them of agency altogether or tacitly assuming that acting morally never requires one to bear great costs. Becoming a soldier is a morally risky act and at this point in human history everyone of normal intelligence and who is not a child, ought to know that fact. To become a soldier is to have good reason to believe that one may be called upon to kill other human beings, some of whom will most likely be innocent. Quite apart from the fact that many soldiers are not conscripts, it will not suffice to reply that conscripts, at least, have no choice. In some cases they do have a choice, though choosing not to serve may be costly. In each of the major wars of the twentieth century, some conscientious individuals refused to fight, even when conscripted, and many more could have chosen to do so, but did not, either because they unreflectively responded to the call of ‘patriotism’ or because they were unwilling to bear the costs of refusal. Furthermore, it is not the case that the costs they would have borne, had they refused, were always so great that it was morally permissible for them not to refuse. Moral theories may falter when confronted with the question of just how much cost an individual should bear to avoid wrongfully harming others. For most theories, there will be cases in which the costs of refusing to be a soldier can become so high that it is said that the individual ‘had no choice’. But not every individual’s situation is like that when he is confronted with the prospect of becoming a soldier. It is a peculiar feature of much contemporary just war theorizing that it expects soldiers fighting in a just cause to bear considerable

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risk to minimize harm to noncombatants, while at the same time proceeding as if becoming a soldier is never a matter of choice, as if soldiers cannot act wrongly in carrying out orders, no matter how unjust their cause, so long as they observe the principles of jus in bello, and as if it is unreasonable to expect soldiers to bear significant costs in refusing to carry out (‘lawful’) orders when they fight in an unjust cause. 10 To become a soldier—and not be willing to disobey orders to do wrong—is to become a weapon to be wielded by others. In many cases, one will have very good reason to believe that in becoming a soldier one will become a weapon that will be used to do grave wrong. Such is the case if one becomes a soldier in a militant dictatorship that has exhibited a pattern of unjustified violence toward minorities in one’s own country or aggression against other countries. It can be not only better, but even morally obligatory, to suffer punishment or even death, rather than become a weapon to be wielded at the discretion of unaccountable, vicious leaders, bent on massive violations of basic human rights. There is one more way of responding to the second, more sophisticated ‘rightsbased’ objection to preventive war which I will only sketch here. It depends upon a clear-eyed rejection of the idea that morality can literally be ‘rights-based’. On this view, rights, including the right to self-defense, are not basic in the system of morality. Instead, one must argue for the existence of rights by appealing to the idea that there are certain interests that are so morally important that they can ground obligations owed to persons. Rights are interest-based, both in the sense that one must argue to claims about the existence of rights from premises that present certain interests as being so morally important that they deserve extraordinary protections, and in the sense that disputes about the content of rights have to be settled ultimately to appeals to the nature and moral importance of the interests in question. In my judgment, an interest-based conception of rights must accommodate the idea of fairness, more specifically, the idea that there are limits on the self-restraint that an individual should be expected to exercise in trying to protect his basic interests when he has done nothing wrong to put those interests at risk. This is nowhere more apparent than in the case of the right of self-defense. The right of self-defense, as a moral right, is ascribed to all persons out of recognition of the equal moral importance of every person’s interests in survival and in avoiding serious bodily injury. In determining what the contours of the right of self-defense are—in particular, in determining whether in some circumstances it encompasses the right to use preventive force—we need to consider carefully the fact that a blanket prohibition on preventive self-defense could, under unusual but realistic circumstances, place an unjustifiably severe constraint on an individual’s ability to protect his own legitimate, vital interests. The intuitive appeal of examples like McMahan’s Paralysis case or the Lethal Virus case and Missile Attack cases described above is that they reveal that under certain conditions it would be 10

Jeff McMahan challenges this all too common view. Jeff McMahan, ‘The Ethics of Killing in War’, Ethics, vol. 114 (July 2004), pp. 693–733.

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unfair to expect a person or a group to refrain from using force in self-defense until the lethal harm became imminent. It would be unfair in the sense that understanding the contours of the right of self-defense in this way would impose an excessive burden of self-restraint on individuals or groups faced with the threats as described. In a world in which our predictions are fallible and in which the intentions and abilities of potential attackers are not fully known to us, there are two risks involved in formulating the content of the right of self-defense: if the right is formulated too broadly, that is, if the domain of rightful self-protective actions is drawn too expansively, innocent or at least nonculpable individuals are put at excessive risk of being killed or wounded through the actions of those who can invoke the right of self-defense thus defined; if the right is formulated too narrowly, then staying within its limits makes individuals and groups excessively vulnerable to being killed or wounded by others and to that extent demands unreasonable self-restraint on their part. Even if we cannot formulate a clear, crisp principle of fairness in the distribution of the risks of liability to physical attack, I believe that what is guiding our intuitions in the Paralysis, Lethal Virus, and Missile Attack cases, and what undergirds our sense that the law of conspiracy is morally permissible, is a sense that a right of self-defense that strictly excluded the use of preventive force would impose an excessive burden of self-restraint on us in some situations where our vital interests are threatened. Similarly, one could argue that it is fairer (or at least less unfair), that soldiers who are not conspirators but rather obstacles should be killed in a preventive action needed to thwart a lethal aggressive conspiracy, than that the intended victims of the conspiracy should suffer the threatened harm out of regard for the lives of the obstacles, if they have taken all reasonable steps to alert the latter to their role in the conspiracy and given them the opportunity to step aside. In the case of the individual or group that is faced with either taking no steps to avert a lethal unjust harm or attacking ‘innocent obstacles’, under conditions where they have been warned to step aside, and credible efforts have been made to reduce the harm to them if they don’t step aside, it would be unreasonable to say that the ensuing harm to the ‘innocent obstacles’ would represent an unfair distribution of risk. It would ring hollow to claim that those seeking to avert the unjust harm plotted by the conspirators have not gone far enough in constraining their opportunities for self-protection, that instead of acting to avert the unjust harm they should simply let the conspiracy come to fruition out of respect for the interests of the ‘innocent obstacles’. If they warn the ‘innocent obstacles’ to step aside and fulfill the other conditions I listed above, and if they have come to the decision to use preventive force through the sort of institutional process Keohane and I describe, they have already borne quite significant burdens of restraint and it would be quite false to say they are treating the ‘innocent obstacles’ as mere means to their own survival. Moreover, and this is crucial, we are assuming that those who are going to use preventive force in self-defense have not provoked the anticipated attack—that they are not responsible for being the target of the conspiracy. Under these conditions, if harm must fall on one party or the other—either

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the targets of the conspiracy must suffer lethal harm or the ‘innocent obstacles’ must suffer lethal harm—it is less bad, and fairer, that the latter should suffer the harm. Similarly, the law of individual self-defense holds that one can be justified in killing a wholly innocent person, if one had good reason to believe that he posed an imminent lethal threat and that using lethal force against him was necessary to avert it. The best explanation for the moral appeal of a legal right of self-defense whose content is spelled out in this way, is that the reasonableness criterion represents a fair distribution of the risks of harm between potential victims and possible attackers. My suggestion is that the same considerations of fairness speak in favor of rejecting the claim that the use of preventive force can never be justified, except against those who are conspirators, and never against those they use in their conspiracies. It is implausible to say that, given the pressures to become soldiers that individuals sometimes face, fairness requires that soldiers may never be attacked preventively unless they are active participants in a wrongful conspiracy.

5.5. CONCLUSION In this chapter, I have attempted to strengthen the institutionalist approach to the justification of preventive war advanced in two earlier papers (see n. 2). My focus has been on the refutation of the claim that preventive war as such is unjust because it involves violations of the rights of at least some of those who are targeted in the preventive action. I have argued that even the strongest version of the ‘rights-based’ objection, properly understood, shows only that preventive war may involve the killing of soldiers who cannot be said to be imposing an unjust risk of massive harm and that even when it does it still may be justified. I have shown that there are some cases of preventive war against which ‘rights-based’ objections do not arise (those of Type 1 and 3 above), and argued that there are others (those of Type 2 above) in which the killing of enemy soldiers is less morally problematic than the infliction of ‘collateral damage’ on noncombatants, and hence is morally permissible, if the infliction of ‘collateral damage’ is. My conclusion is that even the strongest ‘rights-based’ objection is incapable of supporting the assertion that preventive war is never morally permissible and that properly designed institutions provide an effective reply to the consequentialist objections. I wish to end, however, on a note of caution. Nothing I have said suggests that any preventive war that has been waged in the past, including the recent US invasion of Iraq, has been morally justified. The core idea of the approach to preventive war I have defended in this Chapter is the insistence that efforts to justify preventive war involve especially grave risks and that these risks can only be adequately addressed through the construction of novel institutions, not through the mere extension of traditional methods of decision-making to the perilous domain of preventive action.

6 The Problem with Prevention

1

David Rodin

In September 2002, one year after the terrorist attacks on Washington and New York, the Bush administration released its ‘National Security Strategy of the United States of America’, the blueprint for the development of US military and security policy. This document contained a radical innovation in the grounds for waging war. It proclaimed a readiness to fight preventive wars against ‘emerging threats before they are fully formed.’ 2 Just over a year later, the United States, together with Britain and a number of other allies, put the policy of preventive war to dramatic effect by invading, defeating, and occupying Iraq in a matter of weeks. 3 The doctrine of preventive war and its implementation in Iraq caused consternation among many long-standing American allies, particularly in Europe. For its critics, the policy is a dangerous and misguided challenge to the legal and moral international order. For its advocates, the policy is a morally and strategically justified response to new forms of security threat. In this chapter, I argue that there are profound moral problems with the doctrine of preventive war. The argument is structured in two parts. In the first part, I examine consequentialist approaches to preventive war. The case both for and against preventive war is often made in consequentialist terms. This seems to me a mistake. Consequentialism suffers from debilitating epistemological problems that renders it effectively useless as a moral theory of war. Consequentialism would require historical judgments about the long term overall effects of war that are intrinsically indeterminate and unknowable. Moreover ruleconsequentialist assessment of the laws of war suffers from what I call the impasse problem: the persistent presence of equally plausible rule-consequentialist arguments for countervailing conclusions. Much of this part of the discussion uses 1

I am indebted to many people for careful and helpful criticism and comments particularly Henry Shue, Jeff McMahan, Alan Buchanan, Bob Goodin, members of the Princeton Center for Human Values research seminar especially Charles Beitz, Michael Smith, Stephen Macedo, Philip Petit, and most especially all the other participants of the Changing Character of War workshop including the fellow contributors to this volume. 2 National Security Strategy of the United States of America, September 2002, p. 2. 3 The doctrine of preventive war was not the stated legal justification for the war, which instead invoked rights granted under earlier Security Council resolutions dating from the termination of the first Gulf War. Nonetheless, the doctrine of prevention and the reasoning behind it figured strongly in the debate over the war and its public justification.

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as its foil a recent and significant contribution to the debate on prevention by David Luban, which provides a vigorous defense of the consequentialist approach to war. 4 In the second part of the chapter, I examine whether preventive action can be viewed as a legitimate component of the right of self-defense. I argue that it cannot. The right of self-defense has historically been grounded in a number of different theoretical justifications including those that invoke a conception of psychological necessity and those that invoke human rights. On neither of these theories, however, can preventive self-defense be justified. Indeed, on what I believe to be the best overall account of self-defense—the human rights-based theory of self-defense—the doctrine of prevention leads quite literally to a paradox: if a doctrine of prevention is morally justified, this can only be because fighting preventive wars are unjustified and vice versa. There are therefore strong ethical reasons for rejecting the doctrine of preventive war.

6.1. PREVENTION AND PREEMPTION First, however, I want to address an important issue of terminology. In the National Security Strategy and in the speeches of the Bush and Blair administrations, the policy that is to be our concern is referred to as ‘preemptive’ rather ‘preventive’ war. But this is a rhetorical sleight of hand. According to wellestablished legal usage, preemption consists in a first strike against an enemy who has not yet attacked but whose attack is clearly imminent. It involves ‘anticipating’ an aggressor who is literally poised to attack. Prevention, on the other hand, involves a first strike against a potential future aggressor who does not yet pose an imminent threat. In Michael Walzer’s words it is ‘. . . an attack that responds to a distant danger, a matter of foresight and free choice’. 5 It is sometimes said that a right of preemptive self-defense is clearly and uncontroversialy recognized under international law. 6 This is simply not true. Many scholars believe that even a limited right of preemption against imminent attack is ruled out under international law. The UN Charter is very clear that the right of self-defense can only be invoked ‘if an armed attacks occurs’ (UN Charter, Article 51). Under traditional means of treaty interpretation this has been taken to unequivocally rule out a right to preemption. 7 On the other hand there does 4

David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48. Michael Walzer, Just and Unjust Wars, Basic Books, 3rd edn, 2000, p. 75. 6 See, e.g. David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, pp. 212–14. 7 See Ian Brownlie, International Law and the Use of Force by States, Clarendon, Oxford, 1963, p. 275–8; Ian Brownlie, ‘The U.N. Charter and the Use of Force, 1945–1985’, in Cassese A. (ed.), The Current Legal Regulation of the Use of Force, Martinus Nijhoff, Dordrecht, 1986, p. 499; Yoram Dinstein, War, Aggression and Self-Defense, 4th edn, Cambridge University Press, Cambridge, 1988 pp. 182–7; Michael Byers, ‘Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, The Journal of Political Philosophy, vol. 11, no. 2, 2003, 171–90, p. 172 n. and p. 180. 5

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exist older customary law, in the form of the famous Caroline doctrine (of which more later), which encompasses a limited right to engage in preemptive strikes against an imminent attack. Those who support a right of preemptive self-defense must argue that Article 51 does not replace, but merely supplements, this older customary law right. But this customary law argument is undermined by the fact that states have tended to avoid invoking a right of preemptive defense even in circumstances that might justify it (e.g. the right was not invoked by Israel to justify its first strike against Egypt in the Six Day War, which is often regarded as the locus classicus of justified preemptive action by the doctrine’s supporters). 8 Thus, while it is possible to argue that there exists a right of preemptive selfdefense in international law, it is by no means a settled question. On the other hand, there is no uncertainty as to the legality of undertaking unilateral military action against ‘emerging threats before they are fully formed’. Such action against a nonimminent threat is properly referred to as ‘prevention’ rather than ‘preemption’, and it clearly contravenes international law as it currently stands. 9 The ‘Bush doctrine’ articulated in the National Security Strategy, while not historically unprecedented, does represent a genuine innovation in the grounds for war, one which would transform the moral and legal framework on the international use of force.

6.2. THE DISUTILITY OF CONSEQUENTIALISM It is not difficult to construct a consequentialist argument for preventive war, particularly in light of the much-discussed potential nexus between international terrorism and WMD. If undertaking a particular preventive war is an effective way of averting a significant terrorist attack or act of future aggression from a hostile state, and if the war does not itself cause more harm than it prevents, and if there is no less costly way of achieving the same good, and if the opportunity costs of the expended blood and treasure do not outweigh the projected goods, then the war would be prima facie justified on consequentialist grounds. These are all big ifs, and much of the plausibility of the consequentialist argument rests on its ability to fulfill the evidentiary burdens they impose. I argue that the consequentialist approach to war quite generally suffers from two traditional vulnerabilities of consequentialist theory. The first is its tendency to generate counterintuitive ethical conclusions and assessments. The second, and far more serious, is a severe epistemological weakness resulting from the radical indeterminacy of the historical judgments required to yield a meaningful consequentialist conclusion about the justification of war. This criticism is not new, it was made by 8 See Michael Byers, ‘preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, The Journal of Political Philosophy, vol. 11, no. 2, 2003, 171–90, p. 172 n. and p. 180. 9 Unilateral preventive action in this context refers to the use of force by a state or group of states without Security Council authorization. The Security Council is mandated to authorize preventive force in order to maintain international peace and security under Chapter VII of the UN Charter.

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Walzer in Just and Unjust Wars, 10 but I believe that the full force of the objection has not been fully appreciated by consequentialist writers on war. Of course, we may expect the case of preventive war to generate special difficulties for any ethical theory. Let us begin, therefore, with what should be an easy case: the Allies’ war against Nazi Germany, which many feel is the clearest modern example of a justified war. The first problem is that it is not clear that a consequentialist analysis supports this judgment. The Nazi regime was brutal and aggressive: it systematically murdered approximately six million innocent people, and subjected many millions more to a regime of extraordinary moral repugnance. But the costs of the war against Germany were in many ways more horrific still. Those who lost their lives to the war outnumber the victims of German murder and genocide, by approximately ten to one. This does not yet include the suffering of the approximately forty million persons displaced or made homeless by the war and the incalculable destruction to the world’s cultural and material wealth. This was a horrific price to pay for stopping Nazi Germany. Even allowing for the expanded genocide that would certainly have taken place if the war had not been fought, it is not obvious that on strict consequentialist grounds it was a price worth paying. 11 What is most striking about the assessment of war from a consequentialist perspective, however, is not that particular wars fail or pass the test in a counterintuitive way, but rather the near impossibility of accurately determining the long-term balance of consequences of engaging in war. To return to World War II, there is a very real sense in which we still do not know the long-term balance of consequences of this war six decades after its end. This is the case for a number of reasons. First, we do not, even now, know the actual casualty figures of the war with any degree of precision. Estimates of the Soviet War casualties alone have ranged from seven to forty million persons. 12 That is a margin of error of 470 per cent—an almost incomprehensible thirty three million human lives! Chairman Zhou En-lai famously responded that ‘its too early to tell’ when asked about the impact of the French Revolution. In a similar way, it may be literally true that it is too early to tell what the ultimate balance sheet of World War II’s costs and benefits is, because the war continues to have a profound and ongoing impact on the world today. This is true both on the macro and on the micro level. The war and its aftermath continue to shape patterns of political alliance and economic exchange within Europe and around the world (e.g. it continues to play 10

Michael Walzer, Just and Unjust Wars, Basic Books, 1977, p. 77. Of course a sophisticated form of consequentialism will consider a range of morally relevant consequences beyond the crude metric of lives lost or saved. It would consider, for example, the moral disvalue of the potential subjection of many millions of people to a regime as deeply unjust as Nazism. It may also be the case that genocide is morally worse than the murder of an equivalent number of unrelated people. But even on a sophisticated form of consequentialism it is very difficult to see how a consequentialist could justify World War II given the magnitude of its actual moral costs. Consider how one of the ultimate consequences of the war was to usher in the Soviet Union’s brutal half-century dominion over the states of Eastern Europe. 12 See Eric Hobsbawn, The Age of Extremes, Michael Joseph, London, 1994, pp. 43–4. 11

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a significant role in the development of the European Union). On a micro level the war continues to affect the lives and well-being of countless individuals in both subtle and profound ways. To take but one example, the trauma of experiencing the war has left legacies of mental illness and emotional abuse that continue to ripple down through the generations of many families. Secondly and most damagingly, because consequentialist assessment requires a comparative judgment between the consequences of fighting and not fighting a given war, it always depends upon questions of counterfactual history that are intrinsically unknowable. For example, if the Allies had not chosen to fight Nazi Germany we can assume that it would have continued to expand its genocidal and aggressive policies—but by how much? Would the Nazi state have collapsed under the weight of its own inefficiency and inequity as the Soviet Union did 45 years later? Would National Socialism have survived the death or assassination of Hitler? There is simply no reliable way to answer these and countless other relevant counterfactual questions like them. These profound epistemological difficulties arise even when conducting a retrospective analysis, with the benefit of hindsight and decades of painstaking academic research. But if consequentialism is to function as a guide to action for policymakers rather than simply as a form of backward-looking moral assessment, then it is necessary to undertake an immeasurably more difficult task still. That is an accurate prospective analysis of the likely long-term consequences of engaging in war before the conflict has even begun. To return to World War II, it is almost impossible to believe that any of the leaders in 1939 could have reliably foreseen the long-term consequences of the war that was about to begin. As Carl von Clausewitz said of war: ‘no other human activity is so continuously or universally bound up with chance’. 13 Moreover, World War II commenced with clear and unambiguous acts of aggression on the part of Germany. But the case of preventive war generates further difficulties still for consequentialism. This is because the feared act of aggression lies sometime in the future and indeed may never eventuate. In such a case, the problems of indeterminacy and the dependence on unknowable counterfactual judgments, present in all war, are magnified many times over. Now, I certainly do not want to claim that we can never make an accurate and well-founded determination of whether the balance of consequences favors war or not. In fact it is often very easy to make this determination in the negative. Because initiating a war always has very significant moral costs, it is obvious that going to war to prevent a minor infringement or slight injury will not lead to better over all consequences. 14 This points to an important asymmetry in our ability to assess the consequences of war. In general, it is easier to fulfill the evidentiary burdens of the negative judgment that engaging in war will not lead to better 13 Clausewitz, Carl Von, On War, Michael Howard and Peter Paret, (eds), Princeton University Press, Princeton, 1976, b. 1 ch. 1, sec 20. 14 My argument concerns a consequentialist assessment of war. I make no claims about international use of force that falls below the threshold of war.

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overall consequences than it is to fulfill the burdens of the positive judgment that fighting will lead to better consequences. There is a structural factor inherent to war that explains why a positive assessment of the likely consequences of war will always be more problematic and less reliable than the purely negative assessment. As Clausewitz observed, war is subject to an inherent tendency to escalate to levels of violence beyond those that combatants would rationally have chosen or indeed predicted at the outset: ‘If one side uses force without compunction, undeterred by the bloodshed it involves, while the other side refrains, the first will gain the upper hand. That side will force the other to follow suit. . . ’. ‘Each side, therefore, compels its opponent to follow suit; a reciprocal action is started which must lead in theory to extremes’. 15 Clausewitz’s structural observation about the logic of escalation in war is, moreover, backed up by empirical evidence which shows that historically most war leaders have assumed, prior to conflict, that the war on which they were about to embark would be short and relatively easy. Sometimes they are correct. More often they are not, and the war proves to be more protracted, difficult and costly than generally expected. 16 If this is correct, this points to a general and persistent tendency for leaders and war planners to underestimate the costs and overestimate the benefits of war. Act-consequentialism appears to offer an obvious strategy for justifying preventive wars (or wars more generally). But the appearance is illusory. There are many straightforward cases in which a decision to go to war would unambiguously lead to morally worse consequences than other policy alternatives. But it is exceptionally difficult to meet the epistemological burdens for demonstrating that going to war would lead to better consequences than alternatives. Wars are events of enormous historical magnitude, and extreme unpredictability. Action in war is subject to a pervasive tendency toward escalation, that can make even the most careful and good-faith assessments of its projected costs wildly inaccurate. Consequentialist analysis necessarily involves issues of counterfactual history that are quite literally unknowable. In the case of preventive war, the relevant counterfactual questions include whether the feared attack would even have taken place without war— in other words whether a preventive war has ‘prevented’ anything at all. 17 For

15 Clausewitz, Carl Von, On War, Michael Howard and Peter Paret (eds), Princeton University Press, Princeton, 1976, b. 1, ch. 1, §3 pp. 75–6 and 77. 16 See, e.g. Geoffrey Blainey, The Causes of War, Macmillan Press, London, 1988. 17 As Walter Sinnott-Armstrong points out in this volume (p. 210), if the effects of war are as indeterminate and unpredictable as I have suggested, this raises the difficult question of how any rational military or political planning is possible. What precisely are planners doing when they assess that going to war would be, for instance, in the national interest? I think that much military planning is subject to similar difficulties, and many policymakers, if they are honest will say as much. But it is also important to note that the criteria according to which most policymakers assess military decisions are substantially narrower in scope than those proposed by consequentialism. For example, judging what is in the national interest is a much narrower (and hence easier) question than judging what will generate best overall long-term consequences (consider: what is in the national interest need not be in the interest of all or even the majority of the members of the nation). Often the consequences that

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governments and citizens seeking to justify a preventive war, act-consequentialism has almost no use. 18

6.2.1. Rule Consequentialism and the Impasse Problem When philosophers talk of a consequentialist approach to war, they are often thinking about rule-consequentialism. Unfortunately, rule-consequentialism faces even greater difficulties than act-consequentialism as an ethical theory of war. This should not surprise us. Rule-consequentialism requires assessing the long-term consequences of iterated patterns of behavior, and hence it amplifies further the epistemological weaknesses inherent in act-consequentialism. I argue that rule-consequentialism suffers from two forms of epistemological weakness. First, we have no sufficient empirical data for assessing the truth of ruleconsequentialist judgments. Second the rule-consequentialist arguments invoked by philosophers and International Relations theorists to support their conclusions persistently generate what I call the impasse problem: the existence of equally plausible rule-consequentialist arguments for countervailing conclusions. The rule-consequentialist argument for preventive war is very old. It dates back at least to Cicero who argued in favor of preventive war against the internal threat of Marcus Antonius by observing that ‘every evil is easily crushed at its birth; become inveterate it as a rule gathers strength.’ 19 Alberico Gentili, the Oxford jurist of the sixteenth century echoed these sentiments: ‘it is better to provide that men should not acquire too great power, than to be obliged to seek remedy later, when they have already become too powerful.’ 20 Michael Walzer takes as the starting point for his discussion of prevention the argument of Edmond Burke, which develops this theme by invoking the notion of balance of power. According to Burke an effective balance of power between the main states of Europe preserves European liberty by preventing any one state from becoming too dominant, and secondly that fighting early, before the balance has become unstable, is less costly than waiting till the threat becomes imminent. 21 As David Luban points out, the Bush doctrine as spelled out in the National Security Strategy turns this argument on its head, by claiming that the imbalance of power (i.e. US dominance) is worth preserving because it is necessary to protect matter to policymakers are more narrow still—the consequences of a given military action for their own political party, department, or career. 18

An alternative way of interpreting this argument is to view it not as a critique of consequentialism per se, but as a strong rule-consequentialist argument for pacifism, or at least a moral presumption against war close to pacifism. Walter Sinnott-Armstrong considers this possibility in his chapter in this volume (p. 211) and I think that if the epistemological difficulties of consequentialism could be overcome, this would indeed be its likely conclusion. 19 Cicero, Works, XIV, Loeb Classical Library, London and Cambridge, MA, 1979, 16–17 (Pro Milone, 10–11). 20 Quoted in Richard Tuck, The Rights of War and Peace: Political Thought and the International Order From Grotius to Kant, Oxford University Press, Oxford, 1999, p. 18. 21 Michael Walzer, Just and Unjust Wars, Basic Books, 3rd edn, 2000, pp. 76–7.

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American liberty. But Luban suggests that both variants of the argument can be assimilated to a more general argumentative scheme: 1. that some state of affairs X (balance of power, U.S. dominance, whatever) preserves some important value V (European liberty, U.S. liberty, whatever) and is therefore worth defending even at some cost; and 2. that to fight early, before X begins to unravel, greatly reduces the cost of the defense, while waiting doesn’t mean avoiding war (unless one gives up V) but only fighting on a larger scale and at worse odds. 22

This rule-consequentialist argument seems plausible. 23 However as both Walzer and Luban point out, there is a rule-consequentialist rejoinder that is at least as plausible. The rejoinder is that even if (1) and (2) are true, it would be better on consequentialist grounds for states not to accept them because doing so would expand the grounds for going to war and thereby lead (in Burke’s words) to ‘innumerable and fruitless wars.’ The ultimate consequences of a general rule permitting preventive war would therefore be worse than one that prohibited it. 24 What we are faced with is what I call the impasse problem: two competing and apparently equally plausible rule-consequentialist interpretations of the preventive-war norm. One interpretation claims that a rule permitting preventive war would lead to better overall consequences because wars fought early would have less human cost, and would protect valuable goods such as national or international liberties. The other interpretation claims that a rule prohibiting preventive war would lead to better overall consequences because a more permissive doctrine would multiply the number of wars fought. Which interpretation is correct? Luban has three rule-consequentialist arguments for why a general norm permitting preventive war should be rejected. I suggest that each can be matched by an equally plausible rule-consequentialist interpretation for the opposite conclusion, hence the impasse problem is not avoided. I want to stress that my intention is not to endorse these counterarguments as the correct rule-consequentialist assessment of prevention. Rather by showing the ease with which rule-consequentialist arguments can be matched by apparently equally plausible counterargument I wish to draw attention to the spurious character of these arguments’ apparent plausibility. Luban’s first argument is that a general right of prevention would make war more likely because it would broaden the category of permissible war. In particular it would justify first strikes by both sides in all the world’s most dangerous hotspots. For example, it would justify a first strike by both India and Pakistan, North Korea and Japan, Israel and Syria, and most frighteningly during the Cold 22

David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 220. Luban sometimes presents the contrast between the consequentialist argument for prevention and his consequentialist reading of Walzer’s reply as a move from act to rule-consequentialism (pp. 226 and 227). But in fact both arguments are rule-consequentialist in structure. For the argument that it is better to fight earlier rather than later can be generalized into a universal rule of prevention. 24 Michael Walzer, Just and Unjust Wars, p. 77; David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, pp. 223ff. 23

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War it would have justified preventive strikes by both the United States and the Soviet Union given a favorable opportunity. 25 But the counterinterpretation of these cases runs as follows: the existence of such hotspots itself imposes substantial moral cost because of the risk and instability they bring to international affairs, and the way they impede valuable economic and cultural exchange. Over the long term, a rule permitting prevention would have positive consequences, by transforming the strategic environment itself in ways that make such dangerous strategic standoffs less likely. Thus, if a norm of prevention had permitted dominant states to hit early and hit hard when a potential rival emerged, many of the hotspots referred to by Luban might never have developed. For example, had the United States used its nuclear monopoly at the end of World War II to act preventively against the Soviet Union, there might never have been a Cold War with the associated risks of global nuclear annihilation. Similarly, one may argue, the other hotspots only pose a danger to the world because the emerging standoff was not nipped in the bud by early preventive action. 26 Luban’s second argument is that a general doctrine of prevention introduces too much ambiguity into the rules of war, which will in turn make war more likely. The reason the doctrine introduces ambiguity is that the judgment as to whether a state constitutes a sufficient threat to justify preventive action necessarily involves what Rawls calls burdens of judgment [the inevitability that different (reasonable) people’s judgment will diverge] and infirmities of judgment (the fact that people’s judgment about matters of great moment and high risk is seldom rational). 27 But it is not clear that increased ambiguity in the rules of war would increase the incidence of war. Michael Byers has argued that ambiguous laws increase the latitude of action for strong states while having little effect on the ability of weak states to engage in military action. This is because ambiguity ‘allow[s] power and influence to play a greater role in the application of the law to particular situations.’ 28 Strong states can bring to bear various forms of political, economic, and military pressure to influence the assessments pertaining to the application of the law, while still retaining the law as a diplomatic tool to be deployed against weaker states. If this assessment is correct, then one can see how an ambiguous law could increase the overall stability of the international system, especially when (as is now the case) the international system is dominated by one powerful state. By freeing the hand of the strong state to take decisive measures against potential rivals and 25

David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 226–7. 26 Of course now that these standoffs exist, any norm of prevention would have to be phrased so as not to trigger avoidable wars (at least in the short term until the expected strategic transformation has time to develop). In reality, the danger that wars would be triggered by a norm of prevention in existing strategic standoffs would be limited by the existing proportionality requirement within the rules of war. 27 David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–248, p. 227. 28 Michael Byers, ‘preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, The Journal of Political Philosophy, vol. 11, no. 2, 2003, 171–90, p. 182.

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disruptive smaller states, the rule could have a strong deterrent effect that would mean fewer wars in the long run. Moreover, because the strong will disproportionately influence how the ambiguous criteria for the rule are applied, there is little risk of a general increase in violence among weaker states. Luban’s third argument is linked to the first two. The doctrine of prevention ‘actually makes rival states into potential threats to each other by permitting preventive invasion of potential adversaries based on risk calculations whose indeterminacy makes them inherently unpredictable by the adversary—and then it licenses attacks by both of them, because now they are potential threats to each other’. 29 But here we need to know much more about the specific incentive structures in play and how they would cash out in real strategic negotiations. According to standard assumptions of International Relations theory, the primary interest of states is to maintain their own security. Typically states will seek to achieve this through building up their military capability and developing alliances to deter neighbors or rivals from attacking them. This deterrence strategy can result in reasonably long periods of stability and security. But the strategy is not cost free. It can also contribute to the initiation of disastrous conflicts that diminish the security of all states involved, as for example the armament and alliance strategies of the major European powers did in the lead up to World War I. Luban’s argument suggests that a general doctrine of prevention would radically increase the costs of the deterrence strategy by making it much more difficult to develop and maintain a stable relationship of military deterrence. This conclusion contradicts the arguments I have just given which suggest that stabilizing deterrence effects could indeed be increased by recognizing a general doctrine of prevention. But suppose Luban’s conclusion is correct. In this case, the effects of a doctrine of prevention could play out in other ways. In essence, if Luban is correct then the deterrence strategy of military armament and alliance formation would cease to function as a rational strategy for states to maintain their security under a general doctrine of prevention. Given this, states would have to look to alternative strategies to maintain their security. Plausible alternatives would include strategies of mutual assurance and disarmament, for example through the implementation of strong nonaggression treaties and mutual disarmament initiatives backed up by independent inspections and monitoring. It is moreover plausible that the mutual assurance and disarmament strategy would results in less cost overall than the deterrence strategy. Therefore by changing the incentive structures so as to make the current deterrence and armament strategy untenable (if indeed this was the effect), a general doctrine of prevention could still lead to better overall consequences. 30 Once again we are faced with an impasse between differing and opposed ruleconsequentialist interpretations of the doctrine of prevention. As I have said, I 29

David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 227. An interesting analogue of this argument is the way in which the mutual acquisition of weapons of mass destruction can actually stabilize relations between rival states. e.g. India and Pakistan have taken more tangible steps to resolve their dispute over Kashmir after they both became nuclear armed. 30

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certainly do not want to claim that my counterarguments should be accepted as the correct and authoritative rule-consequentialist interpretation of prevention. Nor, indeed, do I need to establish this for my argument to succeed. I simply need to show that they are as plausible as the countervailing interpretations given available information. The relevant question is of course: is there a conclusive empirical basis for ruling out one set of rule-consequentialist arguments or interpretations in favor of those that support their contradictory? What is most striking in the rule-consequentialist literature on war is the general absence of reference to empirical evidence that could answer these questions. 31 On reflection, it seems obvious why this is. There does not seem to be any empirical evidence capable of verifying rule-consequentialist interpretations of the rules of war. It is certainly possible to subject the historical record of war to statistical analysis (although it is interesting how little interest most ruleconsequentialist philosophers show in sustained analysis of the historical record). But at best this can tell us what the incidence of war was during periods when the rules of war were interpreted differently. It cannot tell us what the incidence of war would have been, had the rules of war been different. For we have no way to control for the effects that differing social, economic, technological, climatic, administrative, and institutional conditions have on the incidence of war. Not only do we not have the required empirical evidence to settle such rule-consequentialist questions, it is unclear even what could count as empirical evidence. 32 In light of this absence of empirical evidence, rule-consequentialists are compelled to resort to general arguments of the form Luban offers. It is not that these arguments seem implausible. On the contrary they seem very plausible. It is just that there are rule consequentialist arguments for the countervailing position that are equally plausible. Once we recognize this, we can see that the apparent plausibility of these rule-consequentialist arguments is spurious. The arguments are a kind of armchair conjecture, conducted without empirical data or even a clear conception of what would count as empirical data. Rule-consequentialist arguments, like their act-consequentialist counterparts, can provide no useful justification of preventive war. There is no empirical evidence that could settle the question of which interpretation of the laws of war will lead to the best overall consequences, and the arguments that philosophers and legal theorists use to defend their preferred consequentialist interpretation of the

31 Luban does gesture at one point to what ‘experience has taught us’, without explaining either which experience he has in mind or how he supposes that it has taught us. (David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 225.) 32 Bob Goodin has suggested to the author that one might try to obtain a relevant comparable dataset from economic behavior, e.g. by looking at the incidence of corporate takeovers under different regulatory schemes. But there are a number of problems with this suggestion. The first is that it is difficult to know what would constitute the corporate analogue of a preventive war. The second is that even if one could construct a plausible economic analogue of preventive war, it is highly doubtful whether these observations could be generalized to cases of military action in which human lives and national sovereignty are at stake.

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rules of war can be matched, point for point, with equally plausible arguments for the exact opposite conclusion. 33 But one might have a worry about the argument at this point. If the epistemological critique of act and rule-consequentialism in the ethics of war is valid, then surely it proves too much. If the long-term consequences of complex decisions and the rules that might govern them are always indeterminate, then how can we explain the role that consequentialist cost-benefit analysis clearly, and appropriately, plays in many spheres of life, most notably in the realm of public policy, administration, and economic management? How is future oriented practical judgment possible at all? The short answer is that there are distinctive problems in assessing the consequences of decisions and rules relating to war that are not present in many other areas of practical judgment. These problems have to do with the factors I have already surveyed: the immense temporal and geographical scale of war’s effects, the poorly understood, but very real dynamic of escalation in military conflict, the pervasive role played by chance in military outcomes and the persistent psychological tendency for planners to underestimate costs and overestimate the benefits of war. These are factors that are either unique to war, or are present in war to a far higher degree than in most other human activities. Moreover, in war we have no empirically tested predictive theory of outcomes in the way that we have, for example, in economics. Although there have been attempts to create predictive models of military outcomes there are many variables, both human and natural, that simply cannot be accounted for. As the United States discovered to her cost in Iraq, even possessing a military superiority virtually unparalleled in the history of warfare is no guarantee of successfully achieving military objectives in a war. But the concern might be restated in another way: if there is a distinctive epistemological problem about judging the consequences of warfare, then surely this will be an equal problem for any plausible deontological approach to war including the just war theory. After all, several aspects of the just war theory clearly require assessment of the consequences war, for example the jus ad bellum criterion of proportionality. If accurate assessment of the future consequences of war is impossible then just war theory must suffer from the same indeterminacy as act and rule consequentialism. 33 I actually think this radical indeterminacy of consequences is true of the rules of war more generally. For example it is often claimed that, whatever other grounds they may have, the rules of jus in bello are clearly justified on consequentialist grounds. But this is by no means obvious. To take the issue in its most general form, how do we know that having jus in bello rules leads to better consequences than not having any in bello rules at all? It could be that by civilizing the conduct of war, those rules make it easier for states to take their people to war, thus increasing the frequency of wars in the long run. Consider, for example, how the horrific experience of the two world wars leads the major states of Europe to renounce war with each other and embark on the extraordinary collective project of the European Union. Again, I do not want to claim that abandoning the rules of jus in bello would lead to better overall consequences, but simply that this argument is as plausible a speculation as the countervailing interpretation. Furthermore, there does not seem to be any empirical data to which appeal could be made, even in principle to settle the issue one way or the other.

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I think this objection can also be met. There are two ways we might interpret the criterion of proportionality. On the first interpretation, proportionality states that for a war to be justified there must be reason to believe that the good consequences of the war will exceed the bad. On the second interpretation, proportionality articulates a less demanding condition that takes the form of a defeater condition. It tells us that even if a war is prima facie justified because the other conditions of jus ad bellum are met, the war will still be unjustified if the expected moral costs are grossly disproportionate to, that is significantly greater than, the expected benefits. Neither interpretation makes just war theory indeterminate in the way that consequentialist approaches to war are indeterminate. I have already argued in section 6.2 that the kind of negative and minimal judgment required by the second interpretation of proportionality raises far fewer epistemological problems than the positive judgment required for a consequentialist justification of war. In those cases where war would be grossly disproportionate because the goods it is intended to achieve are trivial, this fact is often manifestly obvious especially compared to the open-ended and escalating harms of war. There is little epistemological difficulty with this kind of judgment. What then of the first interpretation of proportionality? We must concede that this does require making essentially the same analysis of a war’s costs and benefits as we find in consequentialism, and I believe that the task suffers from the same epistemological problems and indeterminacy as consequentialism. But because satisfying proportionality is a necessary condition for the overall justification of war, this fact does not serve to make just war theory itself indeterminate. For in any case in which it is impossible to determine whether good consequences will outweigh the bad (because of epistemological difficulties), the war is ipso facto unjustified. On this interpretation of proportionality, just war theory is not indeterminate, it is simply highly restrictive. While it is an important and open question as to which interpretation of proportionality is correct, this discussion brings out one of the key strengths of just war theory compared with consequentialism. In just war theory, proportionality functions as one condition within a network of other considerations that collectively serve as a potential justification for war. In contrast, when consequentialism is employed as a justification for war, indeterminate positive assessments of the long-term consequences of fighting must carry the full justificatory burden on its own. This, I have argued, they are simply unable to do.

6.2.2. Compliance Effects and the Development of International Law I now want to suggest that the preceding rule-consequentialist arguments for preventive war are all vulnerable to a deeper objection still. Each assumes a causal connection between the content of the rules of war and the behavior of states and other international actors. The arguments turn on what a given interpretation of the rule of prevention would ‘lead to’ or to what consequences the rule would ‘produce’. But of course these causal effects only follow if one makes two

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assumptions: (a) that compliance levels for the rules of war are high and (b) that compliance levels are largely invariant to changes in the formulation of the rules. Unfortunately both assumptions are obviously false. In connection with this point Luban makes a critical move. If [the critic of rule consequentialism] means that no evidence can show that a ban on preventive war would save lives, the reply is that no evidence can show that any doctrine of just war saves lives, simply because states so frequently disregard moral and legal norms. The right test for a moral norm should not be whether the norm will be efficacious, but rather whether it would be efficacious if states generally complied with it. 34

But Luban’s interpretation of the rule-consequentialist test is precisely the wrong one. Rule consequentialism is defined by the claim that moral rules are to be selected solely on the basis of their expected consequences. Given this, the correct rule-consequentialist test is what the consequences of endorsing a rule would be under expected levels of actual compliance. The consequences a rule would have under hypothetical (and as Luban himself explicitly acknowledges, unrealized) compliance conditions are strictly irrelevant. 35 Quite simply, hypothetical consequences are not consequences. Therefore, they should play no role in ruleconsequentialist analysis. 36 This is a crucial point and once we acknowledge it, several things become clear. The first is that the rule-consequentialist arguments we have considered so far, both those for and against preventive war, are all defective. For they all assume high compliance levels for the rules of war that do not actually exist, and they unrealistically consider the consequences of different formulations of rules while holding the assumed compliance levels constant. Once we recognize that these two propositions are false and that the way in which a rule is formulated can have a reflexive effect on that rule’s compliance level, then a whole new and important area of rule-consequentialist argumentation is opened up to us. Indeed, we are now in a position to formulate the rule-consequentialist argument for preventive war in a different and more powerful way. Moreover, this argument links directly with Luban’s discussion of whether, in today’s strategic environment, it may not be reasonable 34 David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 226 (emphasis in original). 35 As Luban himself points out: ‘For the most part the historical record shows that states fight wars regardless of reigning doctrines of just war, because they regard those wars to be in their interests.’ (David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, p. 236.) 36 Consider the example of alcohol prohibition. If we assumed high general levels of compliance, then a rule outlawing the consumption of alcohol would probably have beneficial overall consequences, given alcohol’s associated health and social costs. But we know that compliance with such a law in the actual world would be very low under any tolerable regime of enforcement. Given this, it is plausible that criminalizing alcohol would have many deleterious effects, such as strengthening and enriching criminal organizations who would take over manufacture and distribution of alcohol, and making it more likely that alcohol users will transition to harder and more dangerous drugs. I take it as obvious that the reduced benefits, and increased costs of such a rule under actual expected compliance conditions is what is relevant to any rule consequentialist assessment of a proposal to prohibit the consumption of alcohol.

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to grant to the sole superpower exceptional permissions not applicable to other states. 37 The argument runs like this: Suppose a supremely powerful state is bent on a course of action that is inconsistent with the current rules of war as enshrined in international law (e.g. the prosecution of a preventive war). There are three likely outcomes. The first is that the international community reinterprets the rule in a way that is consistent with the strong state’s desired course of action (e.g. by permitting preventive action under the norm of self-defense). The second is that the international community maintains the original interpretation of the rule, but grants an exceptional permission to the strong state that is not granted to the other states. The third is that the strong state simply abandons the system of rules by acting outside the accepted framework of international institutions and international law. Each of these three outcomes would have serious consequences, but there is an argument to be made that the third eventuality would be the most damaging of all, because it threatens the viability of the system of international law itself. For no system of international rules can plausibly function without the participation and support of the dominant states. This is because, firstly dominant states are among the most important international actors, and secondly if dominant states do not participate in the legal order it reduces the incentives for smaller states to do so. If all of this is correct, then on consequentialist grounds one may judge that it would better overall to either (a) adopt an interpretation of the rule consistent with the dominant state’s desired course of action even if one believed that such an interpretation would produce more immediate harm than good, or (b) to grant to the strong state an exceptional permission within the system of rules in order to (c ) maintain the participation of the dominant power with the system of rules and hence maintain the integrity of the international legal order itself. This argument has particular force if one views international law as a work in progress. That is to say one views it as a nascent system of norms, with some potential to develop into a robust legal system with high compliance levels and real sanctions impartially and consistently applied. On this view the international legal system has value as much for what it might one day become as for what it already is. For those who take this view, who care deeply about the development of international law, who believe that it is an imperative of the most urgent kind to foster and protect the emerging international legal order, and who were dismayed 37 The argument that Luban considers for this conclusion is particularistic in form, focusing on US hegemony. The question, he asks, is whether it would be better for the world if the United States enjoyed an exceptional permission to undertake preventive war. His conclusion is that those who would answer this question in the affirmative have not proven their case. But if one’s general perspective is rule-consequentialist (as I believe Luban’s position is best interpreted), then this does not seem the right question to ask. For if exceptional permissions are granted to US hegemony, it will be very difficult to deny them to future hegemonys in a similar position of global dominance. The correct ruleconsequentialist question is therefore: is it better for the world if uniquely powerful hegemonic states (whoever they may be) are granted exceptional permissions within the international legal order. It is this question that my argument addresses. (See Luban, David, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, pp. 236–48.)

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and appalled at the damage wrought on international institutions by diplomacy in the lead up to the war in Iraq, this argument generates a painful dilemma. How should we respond to this consequentialist argument that explicitly links the formulation of rules, or the granting of exceptional permissions to particular states within the system of rules, to the viability of the system of rules as a whole? The first thing to note is that the argument is framed from the perspective of those outside the policymaking organs of the dominant state. Because it takes the actions and intentions of the dominant power as a brute fact, this argument cannot be used by US policymakers themselves to justify their demands that the United States be granted an exceptional permission. But what about those of us outside the corridors of power of the dominant state? What should we make of the argument? An obvious response is to push home the epistemological critique of consequentialist arguments developed in the preceding sections. How are we to assess the relative costs and benefits of the different outcomes of rule amendment, the granting of exceptional permissions, or the abandonment of the system of the rules by the dominant state? Over what time frame? And holding which assumptions constant? How are we to assess the counterfactual consequences of the strategies not chosen and the opportunity costs of those chosen? 38 All of these questions are deeply obscure and once again we are reminded of how little traction consequentialism gives us on the issues involved. But a different and instructive form of response is suggested by Michael Byers in a challenging recent paper. He argues that it might actually be better for the system of international law as a whole if the ‘United States simply violated international law without advancing strained and potentially destabilizing legal justifications’. 39 The reasoning behind this claim is that the actions of a state will only have a precedent-generating effect in customary international law if the state claims a legal justification. He therefore advocates that the US approach to prevention should be one of ‘exceptional illegality followed by mitigation’ 40 —essentially to explicitly violate the law while making an extra-legal claim of reduced responsibility. He writes: It follows that if a state admits—explicitly or implicitly—that it is violating international law, the overall effect is as likely to strengthen the rule as weaken it. The situation is in some 38 These problems generate further iterations if we consider the status of an actor with only a small influence on decision-making within institutional contexts, e.g. a voting citizen, a political commentator, or a moral philosopher. Such situated actors must presumably ask a more complex set of questions still: what effect would my action (voting, putting forward an argument in the public domain) have on the actions of fellow citizens or participants in the political process? What effect would this in turn have on the actions of my state? And thereby on the international system itself? An additional layer of complexity still is added by the fact that the three probable outcomes I have considered are not discrete alternatives. Each is subject to shades of variation, so that the actual range of outcomes may be substantially more variegated and complex. 39 Michael Byers, ‘preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, The Journal of Political Philosophy, vol. 11, no. 2, 2003, 171–90, p. 186 (emphasis in the original). 40 Ibid., 188.

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respects comparable to the prohibition of torture, which remains a strong rule despite a pattern of violation by some 120 states. This continued strength would seem to flow from the fact that those states consistently deny and seek to conceal these acts. 41

Yet this solution seems as unsatisfactory as the problem it is formulated to address. The difficulty is apparent if one asks in what sense a rule can be said to be ‘strong’ if there is ‘a pattern of violation’ by 120 states (roughly 60% of international community)? The argument seems to belie a fetishism about the formalistic integrity of the law, without sufficient concern for the ability of the law to provide an effective remedy (in this case to the continuing problem of torture). Why should we care about the integrity of the law, if that integrity masks, and to a certain extent is dependent upon, widespread noncompliance? This critical observation can be generalized into a robust response to the reformulated ruleconsequentialist argument for prevention. The response runs like this: a primary function of legal systems is to protect the weak from predatory or arbitrary action by the strong. But if the participation of the strong within a system of law can only be secured by amending the law, or by granting an exceptional permission so as to allow potentially predatory or arbitrary behavior by the strong that would otherwise have been ruled out by the law, then the legal system has substantially failed to fulfill this function. There must be an appropriate relationship between means and ends in moral argument and action. In this case the means employed to support the system of international law are antithetical to the deeper purposes and principles of the law itself. The integrity of the system has been purchased, to some degree, at the expense of its effectiveness and impartiality: two of the most important features of any just legal system. If the proposed exceptions or amendments to existing law were minor and concerned matters of peripheral importance, then it may be plausible to modify the legal system to ensure the general participation of the strong. But if the proposed modifications concern—as they do in the case of preventive war—a central norm regarding the fundamental issue of when force may be used in international relations, then the situation is very different. If we are prepared to bend the law or grant exceptional liberties to strong states concerning norms of fundamental importance, then we may wonder what is the value of the legal system whose integrity we are aiming to preserve. Or to phrase the argument in more consequentialist terms, it is difficult to see where the beneficial consequences of the system of law will come from if the strong get to do what they want either way. In this first part of the chapter, I hope to have shown that consequentialist theorizing about war is defeated by the profound epistemological difficulties of assessing the long-term effects of individual wars on the one hand, and the rules of warfare on the other. What is fatal to the consequentialism of war is not simply that we do not know how to answer the questions that consequentialism asks, nor even that we cannot know, but that we do not even know what it would mean to know (in the sense of having a clear conception of what would count 41

Ibid., 187.

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as attainable empirical evidence in the real world one war or the other). Given this we should abandon the fruitless and unproductive attempt at second guessing the construction and interpretation of the rules of war on consequentialist grounds and concentrate our efforts on an activity in which philosophical and legal analysis can gain some genuine traction: that is answering the question of whether, and under what conditions, preventive war could be right or just. It is to this task I now turn.

6.3. PREVENTIVE WAR AND SELF-DEFENSE I believe that the best way of investigating the justice of preventive war, is to look at the question of whether preventive war can be justified as an act of legitimate selfdefense. The notion of self-defense is fundamental to the way we think about the ethics of war, and the National Security Strategy itself casts the issue of prevention as one of self-defense. 42 The right of self-defense is normally taken to require that three conditions be met. 1. Necessity: defensive action must be necessary in the sense that there is no less harmful way to avert the harm or attack. 2. Proportionality: harm inflicted in the course of defensive action must be proportionate to (or not disproportionately greater than) the harm or attack one is seeking to avert. 3. Imminence: the harm or attack one is defending against cannot be a distant or remote one, but must be truly immanent. The National Security Strategy addresses, at least implicitly, each of these conditions. The condition of immanence is explicitly acknowledged, but it is argued that ‘we must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.’ 43 This adapted conception of immanence is clearly meant to include more than the ‘visible mobilization of armies, navies, and air forces preparing for attack’ 44 and would permit action against ‘emerging threats before they are fully formed’ 45 and ‘even if uncertainty remains as to the time and place of the enemies attack’. 46 But this talk of ‘adapting’ the concept of imminence is, once again, mere rhetoric. Any doctrine which allows the use of force against potential threats that 42 Luban says: ‘Whatever moral force the argument possesses derives from the inherent right of self-defense—provided, of course that the case for prevention as a legitimate form of self-defense can be sustained.’ (David Luban, ‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207– 48, p. 221.) In his preamble to the National Security Strategy, President Bush asserts the doctrine of prevention ‘as a matter of common sense and self-defense. . . ’ (National Security Strategy of the United States of America, September 2002, p. ii). 43 National Security Strategy of the United States of America, September 2002, p. 15 44 Ibid. 45 Ibid., v. 46 Ibid., 15.

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have not yet fully formed and where it is unclear when, or even if, an attack will occur has not adapted the traditional condition of immanence, but has abandoned it. The real challenge of the Bush doctrine, therefore, is not whether the concept of imminence needs reform but whether it needs to be abandoned entirely. To put the question another way: can we can make sense of the right of national self-defense, without the traditional condition of immanence? It is this question I propose to discuss and I hope to show that the notion of imminence lies very deep in the idea of self-defense. Correspondingly, it is very difficult to understand preventive war as a legitimate part of self-defense. I used to believe otherwise: that the concept of immanence is not fundamental to the right of self-defense. I previously argued that the condition of immanence is subsidiary to the condition of necessity. 47 Imminence, I argued, is derived from necessity because of epistemic constraints on human action. The point is that one cannot know that defensive action is necessary, unless the attack one is defending against is really imminent. If on the other hand, one had superhuman knowledge and could foresee that the only way to prevent some future wrongful harm or attack was to engage in defensive measures, then one would not be required to wait till the attack was imminent: necessity would be enough. If such an interpretation were correct, then it would open a way to allowing prevention as a legitimate form of self-defense. The view would certainly place an enormous, and probably unsustainable, burden on the intelligence used as a basis for going to war, for one would have to be certain that the defensive measures were really necessary to prevent the harm in question. But the idea of a preventive war of self-defense against a nonimminent threat would not be ruled out at the level of moral theory. I now think that this view is wrong, and that the condition of immanence is much more fundamental to the right of self-defense. To see this we must look into the theoretical underpinnings of the right of self-defense. The right of self-defense as we currently have it in law and moral theory, has been influenced by at least three distinct traditions of thought. The first is the consequentialist tradition. The second tradition views self-defense as action conditioned by a kind of psychological necessity. The third tradition views the aggressor as morally liable to harm by an act of legitimate self-defense and explains this liability on the basis of his fault or culpability for initiating the attack. As I have discussed consequentialism above, I will say no more about it here. But I do intend to examine the role played by imminence in the other two traditions, both of which have been influential on modern ideas of legitimate self-defense. 48

47

See David Rodin, War and Self-Defense, Oxford University Press, Oxford, 2001, p. 41. A fourth tradition which I do not discuss here is the Catholic doctrine of double effect initiated by Thomas Aquinas. On this view, it is never permissible for a private individual to intend the death of an assailant in self-defense, however it is permissible to engage in acts which one foresees will result in the death of assailant as long as their death is not intended either as a means or as an end in itself. Summa Theologica II-II, Q. 56. This tradition is not prominent in the modern conception of selfdefense, though the double effect doctrine has had a profound influence on broader moral theory. 48

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6.3.1. Self-Defense as Necessity The connection between self-defense and necessity is an old and deep one. In fact, in some jurisdictions self-defense is referred to simply as ‘necessary defense’. Necessity in this context is close to the legal concept of duress. It is a form of excuse stemming from the fact that a wrongful action is viewed as psychologically necessary or unavoidable in situations of extreme danger or pressure. 49 It is probably this conception of necessity that Cicero had in mind in this famous passage: there is a law not of the statute-book, but of nature, . . . that should our lives have fallen into any snare, into the violence and the weapons of robbers or foes, every method of winning a way to safety would be morally justifiable. When arms speak, the laws are silent . . . 50

What underlies this necessity approach is a compassionate stance towards the frailty of human nature. Given the kinds of creature we are, there are some things (such as abstaining from taking action sufficient to save our own life) that we simply cannot be expected to do. 51 As Aristotle says they ‘strain human nature to breaking-point and no one would endure.’ 52 If it is to be just and humane, the law must take account of this, and not hold us responsible for actions taken under the enormous psychological pressures of the shadow of death. 53 This psychological necessity view of self-defense was reflected in the medieval law of se defendendo. According to this law one was not to be punished for killing in the course of a fight, if one quite literally ‘had one’s back against the wall’, and taking the opponent’s life was the only way of saving one’s own. Now one might think that such a conception of self-defense can have little connection with the laws of war, for states are not psychological entities that feel fear in the way that individual persons do. But it is precisely this account which is suggested by the most famous legal text on the right of national selfdefense: the Caroline doctrine. This text states that a nation’s right of self-defense is based on a ‘. . . necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. 54 Although states do not experience 49 The term ‘necessity’ can have two meanings in moral and legal theory. The first is the excuse under discussion here. The second is the condition found inter alia within just war theory and the law of self-defense which requires that an action may only be undertaken if there is no less costly or harmful way of achieving the same result. 50 Cicero, Pro Milone (10–11) in Works, XIV, London and Cambridge, Mass., Loeb Classical Library, 1979, 16–17. 51 George Fletcher, Rethinking Criminal Law, Little, Brown, Boston, MA, 1978, p. 808. 52 Aristotle, Nicomachean Ethics, Crisp, R. (tr.), Cambridge: Cambridge University Press, 2000, 1110a. 53 Law and morality seem only partially persuaded by this line of thought. The excuse of necessity is available under certain circumstances, but it does not cover all cases in which one is in fear for one’s own life. It does not cover for instance the use of lethal defensive force against innocent bystanders. Nor is duress an excuse for certain kinds of crime, e.g. treason (J. C. Smith and B. Hogan, Criminal Law, Butterworths, London, 1992, pp. 238 and 240. See also R. Stone, Offenses Against the Person, Cavendish, London, 1999, p. 66). 54 Quoted in Yoram Dinstein, War, Aggression and Self-Defense, p. 249.

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the psychological fear of a real person, perhaps they can experience something analogous. 55 Viewing self-defense in this way, does however, have a number of significant and somewhat unpalatable consequences. The first is that contrary to modern legal theory, self-defense is viewed not as a justification but merely as an excuse. An act is justified if it is the right or permissible thing to do in the circumstances. An act is excused if it was the wrong thing to do, but the agent ought not in the circumstances be held fully responsible for the act. Cicero captures this implication astutely with his claim that when arms speak ‘the laws are silent.’ It is not that the laws approve or permit the actions in question; they simply abstain from passing judgment. The second consequence is that self-defense on this view takes a form which is rather peculiar to the modern eye. The modern right of self-defense encompasses, in most jurisdictions, the defense of others including strangers. But because on the psychological necessity view self-defense is grounded in the idea of action under extreme fear or pressure, the excuse is only available for defending certain kinds of person. The medieval claim of se defendendo was only available if one was defending one’s own life or that of close friends or family. Only then were the psychological pressures considered sufficiently grave to provide an excuse for murder. Thirdly, the necessity view makes no discriminations based on fault as to who can claim the excuse of self-defense. The excuse is available to anyone facing the extinction of their life, be they innocent victim or culpable aggressor of the original attack. 56 What is clear, however, is that the psychological necessity view of self-defense is quite incompatible with the idea of a preventive war. For on this view it is precisely the imminence of the potentially fatal attack and the extreme psychological pressure this imposes that makes defensive acts excusable. When the attack is remote and merely potential there is no psychological necessity of this form. What is required on the necessity view is precisely suggested by the language of the Caroline doctrine: ‘. . . necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. 57 In contrast (and almost in contradiction) to this the National Security Strategy explicitly states: ‘We will always proceed deliberately, weighing the consequences of our actions.’ 58 This brings out an important feature of preventive wars; they are wars of choice. Their function, strategically, is to engage the enemy at a time and on terms of one’s own choosing. As such they are antithetical to the tradition of thought on self-defense 55 Some philosophers have spoken of the ‘artificial fear’ that can be experienced by states as political entities. See T. Airakson, ‘The Whiteness of the Whale: Thomas Hobbes and a Paradox of War and Fear’ in M. A. Bertman (ed.), Hobbes: War Among Nations, Avebury Press, Aldershot, UK, 1989. 56 It may indeed be the necessity model of self-defense that underlies Luban’s somewhat counterintuitive claim that ‘a state can legitimately defend itself against an armed attack even if that attack is lawful’ (‘Preventive War’, Philosophy and Public Affairs, vol. 32, no. 3, 2004, 207–48, pp. 211–12 note.). 57 Quoted in Yoram Dinstein, War, Aggression and Self-Defense, p. 249. 58 National Security Strategy of the United States of America, September 2002, p. 16.

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which views that right as grounded in the overwhelming psychological necessity of facing an imminent lethal attacker. If a doctrine of preventive war is to be integrated into self-defense then it must be on the basis of a very different theory of self-defense to that of psychological necessity. In fact, the most plausible theory of self-defense is very different to the necessity view. It is a theory which views self-defense as a justification grounded in a conception of human rights and concomitant notions of liability to harm.

6.3.2. Self-Defense and Rights Here I do no more than sketch out the rights-based theory of self-defense which I have defended in detail elsewhere. 59 One starts with the observation that human beings have rights. Paramount among these is the right not to be killed or subject to significant bodily harm. But killing and harming another human is precisely what is done in acts of self-defense including the fighting of a defensive war. This raises a simple but profound question for the theory of self-defense: what is it that makes the person against whom one is using defensive force liable to be harmed in this way? Some part of our theory of self-defense must account for the fact that an aggressor has lost or forfeited or fails to possess the right to life when he is killed in defense. The best way to account for this moral liability to harm on the part of aggressors is to point to the fact that they commit wrong by engaging in an act of aggression. One way to understand this is to observe that many rights are implicitly reciprocal in their nature. Thus on a plausible understanding of rights, one only has the right to life so long as one respects the right to life of others. At the moment one wrongfully attacks the life of another, one becomes morally vulnerable or liable to being killed in self-defense. This explains why we believe that it is permissible to kill an aggressor in self-defense but not to kill an innocent bystander even if this were the only way to save one’s life. For an innocent bystander has done us no wrong and therefore has the right not to be killed by us, even if this were the only way to save our life. If one accepts that the permission to kill in self-defense is tied to some wrongdoing on the part of the aggressor, then it is easy to see why there is a problem with preventive acts of self-defense. 60 In a preventive war, one attacks and kills those 59

David Rodin, War and Self-Defense, Oxford, Oxford University Press, 2002, ch. 4. It should be noted that there is disagreement among those who defend a rights-based view of selfdefense as to what kind of wrongdoing is required to ground liability to harm in self-defense. Some theorists have argued that one can use defensive force against an ‘innocent aggressor’ or ‘innocent threat’ as long as the aggression or threat is ‘objectively wrong’, that is to say excused, but not justified (see Judith Jarvis Thomson, ‘Self-Defense and Rights’, The Lindley Lecture, Lawrence University of Kansas Publications, 1976, Suzanne Uniacke, Permissible Killing, The Self-Defense Justification of Homicide, Cambridge University Press, Cambridge, 1994.). My own view is that ‘objective wrongdoing’ is not a sufficient ground for self-defense, and that the person against whom one uses defensive force must have some measure of responsibility or culpability for the wrongful action defended against (see David Rodin, War and Self-Defense, Oxford University Press, Oxford, 2002, ch. 4, esp. pp. 83ff.). However, the 60

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who have not yet committed an act of wrongful aggression against you. Without the presence of active aggression it is difficult to see how there can exist the liability to harm which seems to be such a crucial part of the classic model of self-defense. 61 Against this, it might be objected that in cases of preventive self-defense one has good reason to believe that the persons one is using force against are about to engage in wrongful aggression. Is not this sufficient to establish their liability to be harmed? If you have good reason to believe that they will act aggressively, why must one wait till they actually engage in aggression before using defensive force? To answer this question, we may consider an analogy with liability for punishment in criminal law. The analogy is not perfect because self-defense is not itself a form of punishment. Nonetheless there are sufficient similarities in the grounds of liability for punishment and self-defense to make the comparison instructive. In order for there to exist liability for punishment one must establish both a criminal intent and the existence of a criminal act—both mens rea and actus reas. Without criminal intent and the existence of a criminal act a person may not be punished even if we have good reason to think that he will commit a certain crime in the future. In the movie ‘Minority Report’, magical clairvoyants have the ability to see infallibly into the future. Law enforcement agencies are able to use these predictions to arrest and punish those whom the clairvoyants had predicted will commit murder, before they ever have the chance to commit the crime. This procedure is viewed as efficient law enforcement in this imaginary future world. But most of us feel a deep moral repugnance toward such an idea (this indeed is the point of the movie), and this stems from the fact that it is unjust to punish someone who has not yet done anything to merit punishment (even if we grant some supernaturally reliable prediction that they will do it). On the rights-based theory of self-defense a similar problem arises with preventive self-defense. A Minority Report style supernatural example is not required to see this. Imagine that I know you have a violently jealous nature and that if you ever discovered that I have been sleeping with your wife, you would almost certainly take your revenge by killing me. Suppose now that I see you reading through my private papers and that among those papers is a letter proving my infidelity. As soon as you read that letter you are almost certain to form and act upon a murderous intent. But it seems clear in this case that I would be justified in using defensive force only after this had happened. Until such time, there is nothing you have done that makes you liable to my defensive force. Preventive self-defense is therefore ruled out, because you retain your full rights not to be attacked or harmed. argument in the following sections does not rely upon this thesis and is in fact agnostic between the two views. One may therefore read reference to ‘wrongdoing’ in the following sections as including the broader class of ‘objectively wrong’ but potentially excused actions. 61 Jeff McMahan pursues a similar line of argument to that employed here in Jeff McMahan, ‘Preventive War and Killing the Innocent’, Richard Sorabji and David Rodin (eds), The Ethics of War: Shared Problems in Different Traditions, Ashgate, London, 2005.

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Examples like these show us that the conditions of self-defense (necessity, proportionality, and imminence) function in a fundamentally different way within a forfeiture-of-right theory of self-defense than they do within a consequentialist theory of self-defense. Within a consequentialist theory, the conditions of selfdefense are interpreted so as to ensure that the balance of harms in a self-defense situation is maximally conducive to overall welfare. It is therefore appropriate to construe the conditions in a way that is probabilistic. For example, a highly harmful potential attack with a low probability of occurring might yield the same defensive justification as a less harmful attack with a high probability of occurring. But within a forfeit of right account of self-defense, the function of the self-defense conditions is quite different. Although on this account the necessity, proportionality, and immanence conditions often function to reduce harm, they are not intended to reliably minimize overall harm, as on the consequentialist model (e.g. one is entitled to kill virtually any number of culpable aggressors if this is necessary to save one’s own life). Instead their central function is to ensure that the person or persons against whom defensive force is used are really morally liable to the infliction of force, and that the level of harm inflicted on each aggressor is proportionate to his or her individual moral liability. The imminence requirement, then, does more than simply bolster the necessity requirement in conditions of imperfect knowledge or ensure that the outcome of conflict situations are welfare maximizing. By requiring that self-defense cannot be undertaken until an unjust attack is imminent, the condition guarantees that those who are subject to defensive force are morally liable to it because they are currently engaged in an unjust aggressive attack. It would seem then, that the condition of imminence has an essential not derivative role in the theory of selfdefense and that preventive self-defense is thereby ruled out at the level of moral theory.

6.3.3. The Conspiracy Paradox There is, however, a complication. In certain circumstances one may be liable to defensive force, and even to punishment, without having committed a criminal act, if one has engaged in sufficiently clear and serious preparations for performing such an act. These cases are covered by the laws of criminal conspiracy. On the surface these laws seem to contradict the general principle that punishment and self-defense require liability grounded in active wrong doing on the part of those against whom force is used. But this appearance is deceptive, for the liability to punishment and harm in these cases is grounded in the fact that conspiracy to commit a crime is itself a criminal offense. It is the wrongdoing of engaging in a criminal conspiracy that underlies the liability to harm in these cases. This is demonstrated by the fact that penalties for conspiracy offenses are different to (and normally lower than) those for the corresponding crime. But this observation seems to open up a new route to justifying preventive selfdefense. If conspiracy to engage in an attack is itself a culpable wrongdoing, then

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there may be a right of preventive self-defense in cases where the attack is not imminent but in which there is nonetheless a proven conspiracy to commit it. This seems to be the view of Michael Walzer: the line between legitimate and illegitimate first strike is not going to be drawn at the point of imminent attack, but at the point of sufficient threat. That phrase is necessarily vague. I mean it to cover three things: 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. 62

I will assume that ‘intent to injure’ together with ‘active preparation’ is roughly equivalent to a conspiracy to attack. Walzer’s view could then be paraphrased as follows: conspiracy to attack together with necessity equals a prima facie just cause for war. Call this thesis the conspiracy account of preventive war. This account seems on the surface plausible. Unfortunately, the position is subject to an unpalatable paradox. Everything hinges on whether engaging in a ‘conspiracy to attack’ is a wrongful act sufficient to ground a right of preventive defense. For Walzer this consists of two elements: (a) manifest intent to injure and (b) active preparation. But (and here is the problem) these two elements precisely describe an articulated doctrine of prevention such as the National Security Strategy. That document affirms quite explicitly both the intention to attack (‘. . . the United States will, if necessary, act preemptively’. 63 ) and the active preparations for doing so (‘to support preemptive options, we will: build better, more integrated intelligence capabilities . . . coordinate closely with allies . . . transform our military forces . . . ’ 64 ). But if a conspiracy to attack (consisting in a manifest intent and active preparation) is a form of wrongdoing sufficient to ground preventive military action, then doctrines of prevention such as the National Security Strategy are ipso facto morally wrong. The paradox implicit in the conspiracy account of prevention now emerges clearly. If manifest intent and active preparation together constitute a wrong sufficient to ground preventive war, then any doctrine of preventive war is impermissible. If, on the other hand, doctrines of prevention are permissible, then the combination of manifest intent and active preparation are presumably not in themselves wrong and this implies that there is no sufficient moral ground for preventive war. The paradox is similar in structure to the famous liar’s paradox, which consists in a statement that is true if it is false and false if it is true. On the conspiracy account, if preventive wars are permissible, then doctrines of preventive war such as the National Security Strategy are impermissible. If doctrines of preventive war are permissible, then preventive wars are impermissible. This paradox severely undermines the conspiracy account of preventive defense. How might one evade this paradox? There are a number of possibilities. The first is based on a distinction suggested by David Luban in his contribution to 62 Michael Walzer, Just and Unjust Wars, Basic Books, 3rd edn, 2000, p. 81. Interestingly, Walzer’s language of ‘sufficient threat’ is adopted (whether consciously or not) by the National Security Strategy (see NSS, p. 15). 63 NSS, p. 15. 64 Ibid., 16.

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this volume. Luban argues that the kind of threat that could justify preventive action must be a large-scale threat to basic human rights most clearly evidenced by a war of subjugation. An acceptable doctrine of prevention, on the other hand, will be strictly limited to planning for the use of minimum force directed solely against the enemy’s military capabilities: ‘. . . unless the preventive war itself aims at a large-scale attack on basic human rights, planning for it is not a conspiracy to commit the wrongs that would justify preventive war’. Referring to my own argument he concludes: ‘Paradox lost’. 65 I believe that this distinction, on its own, does not take us very far in avoiding the paradox. The problem is that the distinction is question begging. Even an attack that is strictly limited to proportionate and necessary action against legitimate military targets can constitute a large-scale violation of basic rights. It will constitute such a violation of rights if the attack is itself unjustified (as for example an aggressive war conducted solely against military targets violates human rights in the victim society). But of course whether engaging in a preventive war against a nonimminent threat is justified as a form of defense or is an unjustified act of aggression is precisely what is at issue. Luban’s distinction does not help us to escape the basic quandary at the heart of the paradox: if the manifest intent and active preparation to carry out a preventive attack against the military capability of the enemy is wrong, then doctrines of prevention are also wrong. If such intention and preparation is not wrong then the justification for preventive war evaporates because (so long as the enemy is not planning to attack nonmilitary targets) there is no prior wrongdoing to ground and explain the enemy’s liability to harm. Paradox regained. But there is a further objection to the paradox which is also implicit in Luban’s chapter. 66 A distinction might be drawn between conspiracies to attack which are reactive and conditional, in the sense that they are formed in response to a preexisting conspiracy to attack on the part of an enemy (whether this attack is directed solely against the military of the broader society), and conspiracies which are not conditional in this way. The thought is that there is a form of conspiracy to attack that is not morally objectionable because it has the form: ‘we are only planning to attack them because they are planning to attack us’. One could then imagine a rule that permitted planning and preparation for preventive war and whose structure mimics the current structure of the international law on the use of force. This states that a first use of force is prohibited, but defensive force in response to a first use is permitted. In a similar fashion, one might say that engaging in a first conspiracy to attack is prohibited whereas planning a preventive attack in response to a first conspiracy is permitted. I think that the conditional intention response to the conspiracy paradox does identify a theoretically valid construction for the law, but there are two problems with it. The first (which actually applies more generally to any form of the conspiracy account) is that the realm of liability generated by a wrongful conspiracy 65

David Luban, ‘Preventive War and Human Rights’, p. 193. Ibid. pp. 190–2. This formulation of the objection has also been strongly articulated in discussion by Henry Shue. 66

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will most often be too narrow to justify a full-fledged preventive war. For who is responsible for the wrongful conduct that constitutes an unconditional conspiracy to attack? If the threatening conspiracy is to be kept a secret (as presumably it must be) then it will be the ruling executive together with a small cabal of military and political elite who are responsible for planning it. It is this group, rather than the ordinary soldiers and state officials who may be doing nothing more than their regular and unobjectionable duties, who have taken steps sufficient to make themselves liable to preventive defensive force. How can we then justify a broader preventive war which involves the killing of soldiers who have done nothing to assume liability to lethal force? Luban responds that all wars involve the killing of innocent people, and that ‘unless we accept pacifism, the destruction of innocent life (tragic and senseless as it surely is) does not by itself make an otherwise just war unjust, provided it satisfies proportionality.’ 67 While Luban, earlier in this chapter, provides a subtle and persuasive discussion of the many ways in which war necessitates killing persons in ways that would be prohibited in the strongest terms under normal domestic morality, he is surely wrong to conflate these cases with that of killing a soldier whose leadership is covertly conspiring to start a war. 68 For example, when we say that a conscript soldier forced at gunpoint to serve in an aggressive war is morally innocent, what we mean is that the soldier has an exculpating excuse for action that is objectively unjust. It is well established in law and moral theory that engaging in an excused but objectively unjust harmful act can generate liability to defensive force. In contrast, a soldier sitting in his barracks or going on exercise while his leadership, largely unbeknown to him, plots an aggressive war has not engaged in any use of force at all, let alone an objectively unjust one. Similarly, we know that all wars will cause the collateral killing of innocent civilians at a level which would never be tolerated under domestic law or morality. But a state that uses force against soldiers in a preventive war is directly targeting soldiers who are morally innocent of the conspiracy to use force. One does not have to be a full adherent to the doctrine of double effect to believe that there is something particularly repugnant about directly targeting the innocent in order to achieve one’s political and policy objectives. The second difficulty with the conditional intention proposal is that it does not seem plausible or viable given the nature of the international political system. Modern states have standing armies, and the strategic planning organs of those armies constantly engage in planning and preparation for military action that is both defensive and offensive in the tactical sense. In the modern world, therefore, active preparation for war can be taken as a given for most states. Because of this, a rule which prohibited an unconditional conspiracy to attack but permitted conditional conspiracies would in effect turn exclusively on the second of Walzer’s conditions: the intention of the state in question. The justification of preventive war would be based on a subtle assessment of the intentions of other states: were their plans to attack us conditional on our declared intention to act preventively 67

Ibid., p. 194.

68

Ibid., see esp, pp. 175–80, ‘Standing on the Threshold of Pacifism’.

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toward them? Or were they planning to attack us anyway, irrespective of our military intentions? But how could such assessments function as part of a legitimate rule of war? Part of the problem is once again epistemological: what would count as evidence for the intentions of international actors? Who would make the assessments? And how could they be verified or tested in an impartial way? More fundamentally, to attempt to distinguish between conditional and nonconditional intentions to use force seems to misconstrue the nature of the international system. As thinkers from Thomas Hobbes to Hedley Bull have pointed out, the international sphere is an anarchical system, in which mistrust, fear, and hostile intentions are endemic and virtually universal. Except in those cases where formal or informal alliance structures exist, the ill intent of most states, most of the time can and should be assumed. Given this harsh political reality, a rule that justified war on the basis of an active unconditional intention to use force would be quite literally unworkable. It is true that this argument can itself be given a consequentialist interpretation in the claim that any such rule would be likely to lead to a disastrous proliferation of conflicts around the globe. Yet I have tried to show that the moral objection to preventive war runs deeper than this and stems from considerations that avoid the profound difficulties that bedevil consequentialist theorizing about war. If wars of defense can be justified at all then this must be because those that we kill and maim have done something to make themselves liable to such treatment. It is this fundamental moral constraint that explains the centrality of the conception of self-defense to the ethics of war. For it is precisely the function of self-defense in the theory of war to explain how military action can be consistent with this constraint. The constraint itself places an exceptionally high burden of justification on those who would choose recourse to war. But it is one that is required by our conception of humans as beings with moral dignity and basic rights that demand respect. The fact that someone (or his state) may engage in a potential future aggressive attack is not sufficient to discharge this burden. Preventive wars are not morally justified.

7 Preventive War and Human Rights

1

David Luban

In an earlier paper, 2 I proposed a theory of preventive war along the following lines: 1. It distinguishes between preemptive war—war launched to preempt an imminent enemy attack—and preventive war, which is war launched to preempt a distant or immature military threat. Preemptive war can straightforwardly (if controversially) be assimilated to self-defense, but matters are by no means straightforward with preventive war. 3 The theory I proposed aims to assimilate preventive war to self-defense, but only under restricted conditions. 4 1 I wish to thank the participants in the Leverhulme Programme’s conference on preventive war for their many useful comments and encouragement. Particular thanks go to Walter Sinnott-Armstrong, who prepared written comments on the chapter; David Rodin, who forcefully pressed objections that I discuss in the chapter; and Jeff McMahan, who showed me how to respond to those objections. Sinnott-Armstrong urged a thoroughgoing consequentialism on me, arguing powerfully that it offers a way around many of the perplexities I find myself in in this chapter. Perhaps wrongly, I do not pursue this suggestion here—in large part because, try as I might, I can never get myself actually to believe that thoroughgoing consequentialism is correct. 2 David Luban, ‘Preventive War’, Philosophy & Public Affairs, 32 (2004), 207–48. Parenthetical references to PW are to this chapter. 3 David Rodin, in his chapter in this volume, observes that international law has never unambiguously permitted preemptive self-defense: the nineteenth century ‘Caroline doctrine’, which permits preemptive attacks against imminent aggression, and which has arguably become customary international law, contradicts the letter of the UN Charter, which in Articles 2(4) and 51 permits use of force only ‘if an armed attack occurs.’ Rodin is correct, and I overstated things when, in PW, I asserted that assimilating preemption to self-defense is uncontroversial. However, I continue to believe that the priority of Caroline is the dominant view in international law. In the wake of the Kosovo war, it appears that Articles 2(4) and 51 are not to be read literally, particularly in morally compelling hard cases. 4 In her contribution to this volume, Suzanne Uniacke objects that preventive attacks against a distant threat cannot plausibly count as self-defense. Rather, it is a form of aggression intended to forestall a threat before self-defense becomes necessary. Suzanne Uniacke, ‘Getting One’s Retaliation In First’, (chapter 3 in this volume, pp. 80–1). This, Uniacke adds, is a conceptual point about the categories of aggression, self-defense, and preemption, rather than an ‘evaluative judgment’ about whether ‘pre-emption can come within the self-defense justification of the use of force.’ Ibid., 81. I am talking about the latter topic when I aim to assimilate preventive war to self-defense. Like me, Uniacke acknowledges that preemption (and prevention) can in principle be justified by the same conditions usually invoked to justify self-defense: the reasonable belief that the enemy’s threat is real,

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2. It argues against a general rule permitting states confronting distant or immature threats to launch preventive wars, on the ground that such a permission would license too many wars. The basic reason is that a general permission to launch preventive wars, even if abided by in good faith, would come close to licensing any war against a military rival, because military rivals always pose at least distant, immature threats: that is what makes them military rivals (PW 235–6). Throughout history, launching war-atwill against military rivals has been the prevailing practice of states, and a perpetual curse on human existence. The carnage of the twentieth century shows that, in an age of advanced military technology, war-at-will can no longer be tolerated. (Perhaps it never could.) I offered three specific reasons for thinking that a general permission to launch preventive wars is tantamount to war-at-will: (i) The rule dramatically broadens the category of permissible wars from the current no-firstuse-of-force rule. (ii) The rule permits wars in situations inevitably marked by reasonable disagreements over the magnitude and significance of risks that rivals pose. Most importantly, (iii) the rule actually makes states into risks to each other, because a state that may justifiably launch a preventive war against its neighbor becomes for that very reason a potential threat to its neighbor—and the neighbor is therefore justified in launching preventive war, which in turn makes it a threat. (Call this last the self-fulfilling prophecy problem.) In addition, of course, a rule permitting preventive war against distant threats lends itself to bad-faith abuse, in a way that a rule requiring an actual or imminent attack by the enemy would make more difficult. 3. Nevertheless, a more restricted principle, permitting preventive wars against rogue states where the distant threat involves weapons of mass destruction (WMD), can be justified. The notion of a rogue state at work here is that of a state whose ideology and past history of violence, combined with its current hostile intentions and weapons programs, make it likely that it plans to launch an attack when it acquires the capacity. 4. Even against dangerous rogue states, the permission to launch preventive war is nonproxyable: only the state that is actually the target of the emerging and the necessity of using force to avert the threatened harm. Ibid. She points out that when the threat is distant rather than immediate, these conditions will be more difficult to meet, and I wholly agree. Ibid., 81. However, Uniacke also argues that preemption and prevention lack ‘the definitive normative context’ of self-defense, namely the retaliatory use of force against an unjust threat. Ibid., 82. And, she adds, it is that ‘definitive normative context’ that gives us the ‘positive moral entitlement’ to use force and ensures that the target of our violence is not morally wronged. Ibid. Here I part company with Uniacke. If the two justification conditions (reasonable belief in the reality of the threat, and necessity of using force to avoid it) are met, it appears that preventive attacks have the same ‘positive moral entitlement’ as self-defensive attacks. As for whether the target of preventive attacks has been morally wronged, that will depend on whether the target has forfeited his or her or its right against preventive violence. I address that issue in the present chapter, responding to David Rodin’s ‘rights objection’ to my defense of limited preventive war. My conclusion, defended below, is that when the stringent conditions for justified preventive war are met, its target is not wronged.

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threat can launch war to forestall it. This restriction exists for practical reasons: without it, it would be too easy for a powerful state to pressure weaker allies into ‘requesting’ a preventive war against a mutual enemy; and it would likewise be too easy for a weak state, now relieved of the need to place its own nationals in combat, to overestimate distant risks and provide a powerful patron with the casus belli to attack the mutual enemy. 5. The threat a rogue state poses must be a physical threat against the homeland of the state launching a preventive war. Preventive war on behalf of primarily economic or dignitary interests is impermissible. It should go without saying that the preventive war should be a last resort, undertaken only if more peaceful means of getting the enemy state to abandon its emerging threat fails. Last resort is a traditional just war criterion, and while it seems incongruous to speak of ‘last resorts’ when the threat itself might be years away, there is no actual incoherence involved, if now happens to be the last practicable moment of forestalling the threat. In the Iraq War, the last resort criterion should have prohibited a US attack until the weapons inspectors had finished their work—which would have shown that Iraq had already destroyed its WMD. Since writing the earlier paper, I have enjoyed many opportunities to discuss these proposals with critics, who have offered important objections. My aim in the present chapter is to respond to some of these objections; it is also to use the opportunity to elaborate aspects of the theory that were obscurely stated or underdeveloped in the first go-around. I am particularly interested in what I shall call the ‘rights objection’ that launching preventive war is wrong because it inflicts death and destruction on people who have done nothing to forfeit their rights against such violence. In David Rodin’s words, If one accepts that the permission to kill in self-defense is tied to some wrongdoing on the part of the aggressor, then it is easy to see why there is a problem with preventive acts of self-defense. In a preventive war, one attacks and kills those who have not yet committed an act of wrongful aggression against you. Without the presence of active aggression it is difficult to see how there can exist the liability to harm which seems to be such a crucial part of the classic model of self-defense. 5

Jeff McMahan concurs: The fundamental problem with defenses of preventive war . . . is that they omit any mention of what the target of preventive action must have done to make it morally liable to military attack, so that it would not be wronged by the use of force against it. If those attacked are not liable to attack but are innocent in the relevant sense, preventive war may be prudentially rational, but may not be just. 6 5

David Rodin, ‘The Problem with Prevention’ (ch. 6 in this volume, pp. 164–5). Jeff McMahan, ‘Preventive War and the Killing of the Innocent’, in Richard Sorabji and David Rodin (eds), The Ethics of War: Shared Problems in Different Traditions (Aldershot, UK: Ashgate, 2006), 175. 6

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Rodin and McMahan also anticipate what I believe is the correct response to the rights objection: a state planning an eventual attack has indeed done something to forfeit its right against a violent response, namely conspiring to launch the attack. 7 Rodin objects that invoking the concept of conspiracy in this way generates a paradox that undermines the response. But I disagree. In addition to the rights objection, I have also heard thoughtful criticism of the concept of a ‘rogue state’ that I employ, along with the sometimes-rhetorical question of whether I would regard the United States as a rogue state. In addition, Alan Buchanan has objected to the form of argument I used to criticize a wide permission for preventive war. 8 Both of these criticisms are important, but they raise very different issues from the rights objection. Rather than addressing them in the body of this chapter, I discuss them in two brief appendices (Appendices 1 and 2). Obviously, the motivation for thinking about preventive war now is that the United States based its case for the Iraq War largely on an ‘anticipatory selfdefense’ argument. The Iraq invasion could hardly have been more momentous or politically divisive, and there is always a danger in trying to reflect on general doctrines in the shadow of enormous and divisive political events. Oliver Wendell Holmes, Jr., once wrote that ‘[g]reat cases, like hard cases, make bad law’, and great cases may make bad philosophy as well. Holmes went on: ‘For great cases are called great . . . because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles . . . will bend.’ 9 In the Iraq case, the glaring fact today is that Saddam Hussein’s WMD were not there, despite repeated confident assurances by US officials that the arsenals were there and (in the words of Donald Rumsfeld) ‘we know where they are.’ 10 Furthermore, after the revelation of the July 2002 Downing Street Memorandum, we now have strong reason to believe that the US government decided to go to war months before President Bush was still insisting publicly that no such decision had been made; and that as early as summer 2002, to quote the memorandum, ‘intelligence and facts were being fixed around the policy’ of invading Iraq—in other words, that the ensuing months’ case for preventive war against Iraq was offered in bad faith. 11 The ‘hydraulic pressure’ of these facts may drive us toward the conclusion that 7 Rodin, ch. 6 in this volume, pp. 166–7. McMahan, ‘Preventive War and the Killing of the Innocent’, pp. 182–3. Alan Buchanan also endorses this argument, subject to certain qualifications, in his contribution to this volume. 8 Buchanan, ‘Justifying Preventive War’, (ch. 5 in this volume). 9 Northern Securities v. United States, 193 U.S. 197, 400 (1904) (Holmes, J. dissenting). 10 Interview between George Stephanopoulos and Donald Rumsfeld, ABC ‘This Week With George Stephanopoulos’, March 30, 2003, available at http://www.defenselink.mil/transcripts/2003/ t03302003_t0330sdabcsteph.html 11 Astonishingly, it took months after it was leaked before American newspapers published excerpts from the Downing Street Memorandum, or even discussed it much. It has of course been available on the internet. It is printed in full as a sidebar to Mark Danner, ‘The Secret Way to War’, New York Review of Books, June 9, 2005: 71.

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the principles behind US preventive-war doctrine are as false and flawed as their application. It should be clear that I disagree, because the theory I defended is quite close to the preemption doctrine in the Bush administration’s 2002 National Security Strategy (NSS). I quote the relevant paragraphs of the NSS here: We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. . . . The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. 12

Of course there are differences between the theory I defended and the NSS. Nowhere does the NSS suggest that the right to launch preventive war is nonproxyable, and nowhere does it distinguish between physical threats against the homeland and threats to lesser interests. My guess is that these conditions would prove unacceptable to the authors of the NSS. But here I want to emphasize the similarities, not the differences. In the present chapter, which is critical of the United States in many ways, I continue to defend the theory sketched above. I will offer a conditional defense of the theory. It is very hard to defend any form of war-making at all—indeed, Rodin’s book War and Self-Defense shows that it is hard to defend even wars of national defense. 13 I shall be arguing that the rights objection is actually not an objection only to preventive war. It is an objection to nearly all forms of war-making, and if it holds, war-making itself may not be justifiable. But, turning the argument around, if war-making of any sort is justifiable, as those of us who are not pacifists believe, preventive war might prove no less justifiable. So we must begin with the justifiability of war itself.

7.1. STANDING AT THE THRESHOLD OF PACIFISM To think in moral terms about warfare is always to stand at the threshold of pacifism. Every humanistic system of morality attaches near-paramount value to 12 National Security Strategy of the United States (2002), ch. 5, available at http://www.whitehouse. gov/nsc/nss5.html (last visited August 10, 2006). A 2006 update of the 2002 NSS has now appeared, but the preventive-war doctrine of the 2002 NSS remains in it. See http://www.whitehouse. gov/nsc/nss/2006/sectionV.html (last visited September 20, 2006). The principal innovation in the 2006 NSS’s preventive-war doctrine is the coinage of a new euphemism, ‘proactive counterproliferation.’ 13 David Rodin, War and Self-Defense (Oxford: Oxford University Press, 2002).

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human life, and places stringent limits on taking or risking the lives of others. 14 In combat, by contrast, everyone understands that innocent people will be killed, maimed, and ruined. Even the strictest rules of engagement shatter the lives of innocents to an extent largely unthinkable in civilian life. We may put it more simply. In every moral outlook, human life is dear, but in war life becomes cheap. The job of Soldiers is to expend the lives of their adversaries, and their honor requires them to give their own lives if duty requires it. In a moral sense, most of these troops, like most of their adversaries, are innocent; and in a causal sense, most of them will never pose any direct danger to the enemy soldiers who fight them. They may well be conscripts who had no alternative, they may have a just cause or, alternatively, they may personally oppose their government’s unjust cause. They are vulnerable to lethal attack simply by virtue of wearing a uniform, regardless of whether they will ever use a weapon, or even whether they are awake or asleep. In any counterpart civilian setting, what goes on in war would be murder. Furthermore, in any significant armed conflict, unintended civilian deaths and injuries—described by the antiseptic euphemism ‘collateral damage’—exceed the toll of the most scandalous industrial accidents, and all but the most monumental natural catastrophes. In war, the butcher’s bill is high. Outside of war, the butcher’s bill would be immorally high. 15 I do not mean that war-fighters have no moral code or a defective moral code. I mean the obvious: that even the best possible system of jus in bello consists of regulations at the margin of a human activity that consists primarily of killing people and destroying their handiwork. Recently, a military lawyer remarked to me on the interesting fact that humanitarian organizations and military organizations use different terminologies to refer to the legal code of jus in bello. The Red Cross calls the code ‘international humanitarian law’ (IHL). For the US military, it is ‘the law of armed conflict’ (LOAC). In fact, ‘IHL’ and ‘LOAC’ refer to the same body of law. But, the officer observed, the moment you use the term ‘IHL’ to someone in the military, they know you are not one of them. ‘People who talk about “humanitarian law” are always people in the business of saving lives. We’re in the business of killing.’ A powerful case can be made that the business of killing simply cannot be morally acceptable. As Robert Holmes puts it, ‘Virtually everyone agrees that innocent persons are killed non-consensually in wartime. . . . But if it is presumptively wrong to kill innocent persons, and if, as I shall maintain, war should inevitably involve such killing, then war itself is presumptively wrong,’ 16 even if it is fought within the limits of justum bellum. Pressure on the traditional doctrine 14 By a ‘humanistic system of morality’ I mean a system that derives morality from some account of human interests and human well-being, rather than from a divine code that might, for all we know, command profligate human sacrifice for unfathomable transcendent reasons. Joseph Raz uses the terminology in ‘Right-Based Moralities’, in Jeremy Waldron (ed.), Theories of Rights (Oxford: Oxford University Press, 1984), 183. 15 These points are vigorously and effectively argued in Robert L. Holmes, On War and Morality (Princeton, NJ: Princeton University Press, 1989), 174–213. 16 Ibid., 184.

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of jus in bello, which permits soldiers on either side of a war to kill within the very wide latitude left them by the rules of discrimination, proportionality, and necessity, comes from several directions. Let me review some recent arguments. 1. McMahan and Rodin have both argued powerfully that killing in an unjust war cannot be justified. An unjust war—an aggression, for example—is akin to a burglar breaking into your house. If you attack the burglar, then even if you place his life in jeopardy, neither law nor morality allows him to kill you in self-defense. In the same way, soldiers on the aggressor’s side have no right to kill the soldiers defending their homeland against aggression. Even if the aggressive side’s soldiers fight cleanly according to the established rules of jus in bello, every life they take, even a life taken in self-defense, is a murder, because nothing entitles them to be there in the first place. 17 2. Lieutenant Colonel Tony Pfaff, in a pair of important papers, distinguishes between the moral framework of policing in a civilian society, where the basic aim is to do the job with the minimum of force needed to get it done, taking extraordinary care to avoid collateral damage, and the moral framework of war, where the basic aim is to apply the maximum amount of force permitted by the principles of discrimination, proportionality, and necessity. The gap between the civilian and military standards creates difficult moral dilemmas in police actions such as Bosnia, or in complex contingencies such as post-war Iraq. It is often unclear whether the sniper shooting at troops from an apartment building is an insurgent—in which case the military ethic may well permit calling in an air strike on the building—or a common criminal, in which case the police ethic absolutely forbids endangering the innocent residents of the building. 18 And yet there seems to be something peculiar and morally objectionable in the idea that whether the NATO troops get to blow me to bits or not depends solely on the identity of the sniper on the roof of my apartment building. 3. The intuitive basis for asserting the symmetry of soldiers (symmetrical jus in bello rules for both sides in a conflict) lies in their situation of mutual jeopardy to each other. The moment they don a uniform, soldiers commit themselves to the war project (as I shall call it) of attacking each other on lawful command. That commitment establishes the basic existential situation of warriors, mutual enmity, and mutual risk. But what does that imply for asymmetric warfare, when—as in Kosovo—one side can eradicate the air defenses of the other and then bomb the other to death with close to no risk at all? Future wars, in which technologically advanced societies may be able 17 Jeff McMahan, ‘The Ethics of Killing in War’, Ethics 114 (2004), 698–9; Rodin, War and SelfDefense, pp. 166–73. Holmes offers a similar argument that ‘if at least one side acts unjustly . . . , then all of the killing done by that side, whether of soldiers or civilians, will be wrongful.’ On War and Morality, 186. He adds that this argument goes back to Grotius. 18 Tony Pfaff, ‘Military Ethics in Complex Contingencies’, in Lloyd J. Matthews and Don M. Snider (ed.), The Future of the Army Profession, 2nd ed. (McGraw-Hill Primus, 2005); Pfaff, ‘Peacekeeping and the Just War Tradition’, Strategic Studies Institute, U.S. Army War College, September 2000.

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to fight with unmanned drones, would be completely asymmetrical. From a general’s point of view, the situation in which you can kill the enemy without taking casualties is obviously the dream of dreams. But in fully asymmetric warfare, killing the enemy’s uniformed troops is no more dangerous than killing civilians. On this basis, Paul Kahn has concluded that without mutual jeopardy, killing enemy troops is in fact morally indistinguishable from killing civilians. 19 (Perhaps a closer analogy would be between killing defenseless enemy troops and shooting POWs or other soldiers hors de combat. In fully asymmetrical war, all the weaker side’s soldiers are hors de combat because combat is impossible.) 4. In civilian life, the use of lethal force in self-defense can be justified only under strictly limited circumstances: you must reasonably believe that your life is in imminent and unjustified danger, and that no lesser course of action can save you. 20 These conditions will often be false in war—indeed, since soldiers have the option of surrendering and accepting POW status rather than killing, one might say that these conditions will usually be false in war. 21 5. A substantial philosophical literature of recent years attacks the idea of rights trade-offs, that is, violations of some people’s rights to secure the rights of others (what Richard Wasserstrom once called ‘the utilitarianism of rights’)—including the idea that morality permits us to violate the rights of the few to protect the identical rights of the many. Rights function as constraints on action, not goals of action. But even at its most justifiable, war always involves the predictable killing of innocents in order to protect other innocents. If the utilitarianism of rights cannot be defended, war cannot be defended. Taken together, these arguments radically undermine the possibility of morally justified killing in warfare: if they are valid, soldiers cannot kill in an unjust war or an asymmetric war, they cannot cause collateral damage in police actions or complex contingencies, and they can hardly ever justify killing by appeals

19 Paul Kahn, ‘The Paradox of Riskless Warfare’, in Verna Gehring (ed.), War After September 11 (Landover, MD: Rowman & Littlefield, 2002). 20 These are traditional common-law requirements for self-defense. In recent years, at least 15 US states have enacted more permissive laws, under which self-defense exonerates lethal violence with no duty to retreat in the face of an assailant rather than opening fire on him. Adam Liptak, ‘15 States Expand Right to Shoot in Self-Defense’, New York Times, August 7, 2006, p. A1. These ‘stand your ground’ statutes (or, as opponents label them, ‘shoot first’ statutes) may suggest that the commonlaw requirements do not, or do not any longer, adequately capture many people’s intuitions about peacetime killing in self-defense. But I suspect that these statutes really reflect increasing militarism in the civilian society of the United States—the self-identification of everyman as a swaggering warrior and everyday life as a field of honor where warriors can remorselessly blow away bad guys, with no more duty to retreat than a soldier has in the midst of battle. If this suspicion is correct, what has changed is not moral intuition about peacetime killing, but moral intuition about whether everyday life ever represents peacetime. 21 McMahan, ‘The Ethics of Killing in War’, 717.

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to self-defense. Killing in war turns out to be just as immoral as killing in peacetime—and yet war is the business of killing. At the root of these skeptical arguments about the justifiability of killing in war lies a simple idea: human rights are human rights, in or out of war. If I have a right to life and limb, or a right against arbitrary detention, then the fact that my state chooses war cannot strip those rights away from me. If the right to life and limb includes a right not to be exposed to extraordinary risks, then that right too does not evaporate in wartime. Extraordinary risks include those to which civilians are routinely exposed in urban warfare or bombing campaigns—and the fact that damage is ‘collateral’ makes it no less a violation of basic human rights. A few international lawyers reflect this view by arguing that binding human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) apply equally in times of war and peace. 22 Thus, in May 2004 the UN Human Rights Committee declared that ‘the Covenant applies also to situations of armed conflict to which the rules of international humanitarian law are applicable.’ 23 The ICCPR contains an extensive schedule of rights, including the right to life and the rights to liberty and security of person (Articles 6 and 9), and if the violence and insecurity of war are inconsistent with these rights, the natural implication would be that war itself violates the ICCPR.

7.2. STEPPING BACK FROM THE THRESHOLD And yet pacifism seems too good for this world. How, without violence, can we respond to violence? As Mordred sings in Camelot, it’s not the Earth the meek inherit, it’s the dirt. Men (women too) have always resorted to violence to get their way, and presumably they always will. If you want better than dirt, you must fight back. Pacifists deny the ‘must’. Theirs is Isaiah’s vision of a world that beats swords into plowshares, a world where nation shall not lift up sword against nation, neither shall they learn war anymore. Pacifists usually locate the source of war in remediable conditions of social injustice, not human nature, and that explains why pacifists so often work in social justice movements. My own view of human nature is darker: I suspect that even in a world of perfect justice Cain would still smite Abel, and Lamech would still boast of his violence and thuggery—and thrive to sire equally violent sons, whose violence calls forth responsive violence unto the last generation. But even if social justice would indeed wash the evil from our hearts, it is hard to imagine attaining social justice nonviolently. We live in a world where those who benefit from injustice will fight ruthlessly to preserve the status quo, as they always have. Robert Holmes, who offers an argument for pacifism as 22 See, e.g. Rosa Ehrenreich Brooks, ‘War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror’, University of Pennsylvania Law Review 153 (2004), 746–51. 23 U.N. Human Rights Comm., General Comment no. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), §11.

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powerful as any I know, plausibly insists that the proper way to evaluate pacifism is not by asking the rhetorical question of how a handful of pacifists can stop a Hitler, but by asking whether a pacifist Germany would ever have allowed Hitler to come to power in the first place; or asking how ‘a population of 240 million persons committed to non-violent resistance against an invading army bent upon ruling the country’ would fare—and his answer, plausibly, is that it would fare quite well. 24 His point is that the fair comparison is not between pacifism and militarism in a militarist society, but between militarist and pacifist societies as such. But Holmes never tells us how, in the face of turbulent social injustice generating a steady simmer of micro- and macro-violence, either Weimar Germany or the contemporary United States would become a pacifist society. We may thus find ourselves face to face with an unresolvable contradiction. On the one hand, the utopian impossibility of pacifism; on the other, the powerful arguments that war inevitably and unjustifiably violates inviolable human rights. 25 We should regard this, perhaps, as an example of a dirty-hands paradox; and, like all genuine paradoxes, it threatens the very coherence of thought. 26 If the paradox cannot be dissolved, perhaps at least the tension between warfighting and human rights can be diminished. This is one virtue of defining just war in terms of the defense of basic human rights—my own preferred criterion of jus ad bellum. 27 But diminishing the tension does not eliminate it, and the contradiction remains. Even in a war fought on behalf of basic human rights, soldiers will knowingly kill innocent human beings to protect the rights of others no more innocent.

7.3. THE TWO-MORALITIES CONJECTURE I see only one way to eliminate the contradiction, and it raises problems of its own. Philosophers discussing moral issues in war typically argue by drawing analogies between killings in war and killings in civilian settings. They ask, for example, whether attacking a military aggressor is like attacking a burglar; or whether an enemy conscript is like an innocent attacker in civilian life. This argumentative strategy tests propositions in military ethics against supposedly firmer moral intuitions about everyday civilian life. All the arguments that war inevitably violates moral constraints assume that the moral baseline is the same in peace and in war, 24

Holmes, 273, 275. In Robert Holmes’s words, ‘even a war that is just according to both jus ad bellum and jus in bello criteria will still unavoidably involve the violation of moral constraints’, so that ‘there is something in the very nature of war that renders it wrong and that is not dealt with directly by the just war theory.’ Ibid., 174. 26 See Christopher Kutz, ‘The Difference Uniforms Make’, Philosophy & Public Affairs, 33 (2005), 157–8, on the paradoxes of war. 27 David Luban, ‘Just War and Human Rights’, in Charles Beitz et al. (eds), International Ethics: A Philosophy & Public Affairs Reader (Princeton, NJ: Princeton University Press, 1985). This reprinted version corrects an error in the original version of the paper, published in Philosophy & Public Affairs 9 (1980), 160–81. 25

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and that the peacetime baseline (what we might deem ‘common morality’) is the authentic baseline. But what if war—a permanent aspect of human life for the entire known life of the species—simply has a morality of its own? It might be responded that any departure from common morality requires justification, and so without further argument the ‘separate morality’ conjecture begs the question. 28 The fact is, however, that we have no firmly grounded moral intuitions about how to respond to enmity in highly adversarial settings, even in civilian life. Our proverbs tell us to turn the other cheek, but they also tell us to fight fire with fire. 29 We say that two wrongs do not make a right, but also that turnabout is fair play. Perhaps, given this built-in fuzziness in the common morality of adversarial relationships, the jus in bello is not a departure from common morality, but a department of it. If so, it is not necessarily true that human rights are human rights, in or out of war. If warriors cannot possibly honor human rights as in peacetime, one possible conclusion is the pacifist’s: war cannot be justified. But the pacifist’s is not the only possible conclusion. The other, no more question begging, is that warriors cannot have a duty to do the impossible, and thus the peacetime roster of human rights simply cannot all be rights in wartime. This two-moralities account represents the reigning view in international law, counterposed to the earlier-mentioned minority view that human rights do not vary between peace and war. To be sure, the International Court of Justice insists that the ICCPR binds its parties in war as well as peace—but it immediately restores the two-moralities account, arguing that the right to life is a right against arbitrary deprivation of life, and what is arbitrary in peacetime might be necessary in war. 30 The right remains the same in name alone, because the content of the right is given not by general human rights law but by so-called lex specialis— IHL, the legal embodiment of jus in bello. We have seen, on the other hand, that the UN Human Rights Committee seems to reject the two-moralities view when it insists that ‘a state party must respect and insure the rights laid down in the Covenant [the ICCPR] to anyone within the power and effective control of that State Party, even if not situated within the territory of the State Party.’ 31 But when the European Court of Human Rights considered a suit against NATO powers by the relatives of people killed in a NATO air strike against a Belgrade television station—at a phase in the Kosovo War when NATO had undisputed effective control of the skies—it dismissed the case. According to the European Court, admitting the suit ‘would render the Court competent to review the participation 28 So I have argued about so-called ‘role morality’ that deviates from common morality. David Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988), 125–37. 29 Indeed, Augustine and Aquinas launch their investigations into just war primarily to explain how war-fighting could possibly be reconciled with Jesus’ injunction to turn the other cheek. 30 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809 (1996), §§24–5; quoted and reiterated in Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004), §105. Article 6(1) of the ICCPR reads, ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’. 31 General Comment 31, §10.

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of Contracting States in military missions all over the world in circumstances when it would be impossible for those States to secure any of the Convention rights to the inhabitants of those territories. . . . ’ 32 In other words, the European Court rejects the Human Rights Committee’s strategy of identifying effective military control with civilian jurisdiction. War, the Court suggests, is simply different. I do not claim that the idea of war as a discrete ‘form of life’ with its own morality diminishing human rights has no problems. For one thing, it is a bitter idea, accepting wartime destruction of innocent life as an inevitable part of being human rather than as an ultimate scourge crying out to be eradicated. For another, it accepts the cheapening of human rights in time of war, seemingly without regard for human dignity as the foundation of rights. And for a third, war has never been all that discrete, so that the wartime cheapening of rights threatens to explode its boundary and spill over into peacetime as well. Though it digresses from my principal topic, I wish to say something more about this last objection to the idea of a lex specialis in war. The troubling fact is that the boundaries between war and nonwar have thinned over the past century. 33 The category of wars has expanded from the paradigm of declared international (state-against-state) armed conflict, to undeclared international armed conflict, to internal armed conflict (civil war), to wars of national liberation and guerrilla struggle—an evolution reflected in Geneva law in the distinction between common Article 2, common Article 3, and the Additional Protocols. The Global War on Terror (GWOT, in US military terminology) thins the distinction further, so that it becomes controversial whether the US drone attack on a civilian car in Yemen, supposedly filled with al-Qaeda operatives, counts as a legitimate act of war or an unlawful act of aggression bordering on murder. Complicating matters, within so-called failed states armed conflict often occurs between clans or warlord-governed armed forces that straddle the divide between armies and mafias. Military activities are often funded by criminal endeavors like drug-smuggling, as is the case on all sides of Colombia’s civil war; conversely, wars such as Sierra Leone’s civil war are often fought for no other reason than pillage. When war-fighting gets outsourced to private military contractors (PMCs), the distinction between military activity and profit-making activity thins even more. In parts of Africa, failing states hire mercenary troops to fend off rebels, and pay them with their lands’ natural resources; and the troops may make greater efforts to secure those resources than to defeat the enemy. 34 In short, the distinctions between warfare and gang war, politics and crime, legitimate public authority and for-profit private armies, combat and counter terror have all begun to dissolve. In that case, however, the idea of lex specialis seems particularly odious if it implies 32 Bankovi´ c and Others v. Belgium and 16 Other Contracting States, E.C.H.R., 41 I.L.M. 517, 523 (2002), §43. The ECHR decided the case primarily on the basis of the European Convention on Human Rights, but it also considered the ICCPR. 33 For a useful discussion, see Brooks, 676–761. 34 See P. W. Singer, Corporate Warriors (Ithaca, NY: Cornell University Press, 2002).

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that human rights are diminished and cheapened to the wartime standard in a world of perpetual war. 35 Having acknowledged these difficulties in determining the boundary-line between war and other forms of organized violence, I will set them aside in what follows. The fact is that the dilemma between pacifism and acceptance of some legitimate war leaves no third alternative; furthermore, the fact is that even legitimate war will bring about killing and ruination that are unjustifiable in peacetime terms. Thus, unless one rejects the very idea of nonpacifist moral constraints on war-fighting (and accepts that inter arma silent leges), one must accept a form of jus in bello that offers protection of human rights at a lower baseline level than the morality of civilian life.

7.4. THE RIGHTS WORTH FIGHTING FOR The single biggest difference between the moralities of war and civilian life is that in civilian life we may use lethal force only in self- (and other-) defense, and that means only in defense of life and limb. These, at any rate, are the conditions on use of lethal force embodied in legal doctrines of self- and other-defense, which for present purposes I assume to embody common ‘peacetime’ morality on use of force. I do not mean to suggest that all competent moral agents would agree with the law on this subject. On the contrary, it seems more than likely that subcultures in virtually any society would approve of lethal force to respond to threats to property, or to avenge insults or affronts to honor. But on these matters I will suppose that the law reflects our collective better selves—common morality refined by centuries of intelligent reflection. The restriction of lethal force to defense against serious physical threats reflects two things: the ranking of human life at the top of our scale of values, and the existence of a legal system to remedy lesser wrongs. Neither point is quite so simple, of course. We countenance the use of lethal force to fend off a physical attack inflicting major bodily trauma, such as rape or a serious beating—so human life is not at the top of our scale of values in the sense that only a threat to life itself can justify life-taking. And even when the legal system offers no redress for an insult or betrayal, we expect people to abstain from vengeance-killings. But, by and large, we expect people to call the cops in the face of theft or trespassing rather than taking matters into their own hands. These are not irreversible harms, and we have a legal system in large part to do away with vendetta and vigilantism. Not so, of course, in international society, in failed states, or in states whose legal systems institutionalize oppression. Not coincidentally, these anarchic settings form the sites of international war, civil war, and revolution. Here, it seems unreasonable to expect people to give up their rights without a fight. David Rodin 35

I have raised this concern about the GWOT in ‘The War on Terror and the End of Human Rights’, War After September 11. Brooks is particularly powerful on the meaning of ‘war everywhere’.

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disagrees. He believes that even in the state of nature it violates proportionality to use lethal force to defend property or even to defend ‘against someone who sought to deprive you of important political freedoms, such as the right to vote or freely express your opinions.’ 36 Rodin thinks that the value judgments ranking property and voting below life and limb represent a kind of ‘ethical bedrock’ 37 —and he may be right. But just because life is more important than property or voting, it does not follow that we cannot defend the lesser rights using deadly force, just as we can defend bodily integrity using deadly force even though we rank limbs below life. I think the ban on lethal force to defend these rights seems like ethical bedrock only within a rule-of-law regime that offers redress. Take that away, and the ethical bedrock begins to crumble. Why should warlords or mafias be able to seize the property of people who own very little and reduce them to permanent poverty or peonage? The prosperous Brazilian ranchers and loggers who murdered Sister Dorothy Stang, the ‘Angel of the Trans-Amazon’, were engaged in the nasty business of driving peasants off their land by force in order to steal it and become richer. Should the peasants really be expected to accept exile to the bitter poverty of the urban slums? Turning to the voting example, we should not forget that when squads of thugs stop us from voting, it often means consolidating the rule of some despotic Big Man who consigns his subjects to a mean and hopeless life and who murders or imprisons his opponents. 38 On the theory of just cause that I favor, defense of basic human rights justifies the recourse to arms. I use Henry Shue’s term ‘basic rights’ to refer to rights (such as those to threshold-level physical and economic security) whose satisfaction is necessary before we can enjoy any other rights at all. 39 In these examples, property and voting rights prop up other rights. That makes them rights worth fighting for, and the unavailability of a legal system to protect them implies that fighting for them will sometimes be the only way to preserve them. It might be thought that neither the right to one’s farm nor the right to vote fulfills Shue’s definition, because the expropriated farmer and the disenfranchised peasant are still able to enjoy other rights. But that is not obviously true. We do not know how far they are going to fall, and neither do they. If recourse to arms to defend property can never be justified unless life and limb are unquestionably endangered—a condition Rodin imposes 40 —then the farmer and the peasant must endure expropriation and disenfranchisement to the point of starvation or death before fighting back. And by then, it may be too late to fight, precisely because the farmer and peasant have been reduced so far.

36

37 Ibid., 46. Rodin, War and Self-Defense, 46–8 (the quoted passage on 48). I do not mean that there cannot be cases in which Rodin’s view is more plausible. For example, perhaps the person who stops me from voting has no political agenda—he is simply the neighborhood bully throwing his bulk around on election day because he thinks it’s funny. 39 Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn (Princeton, NJ: Princeton University Press, 1996). 40 Rodin, War and Self-Defense, 44. 38

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7.5. THE ROLE OF UNCERTAINTY This last point highlights a second important feature of the anarchic situations that justify recourse to arms. The very lack of an authority structure means that risk and uncertainty loom large, and one can seldom be confident that small threats will not, if left untended, quickly become unbearably great threats. This worry is central to Hobbes’ conception of the war of all against all, but Locke writes in the same vein that it is ‘lawful for a man to kill a Thief, who has not in the least hurt him, nor declared any design upon his Life, any farther than by the use of Force, so as to get him in his Power.’ That is because, ‘let his pretence be what it will, I have no reason to suppose that he, who would take away my Liberty, would not when he had me in his Power, take away every thing else.’ 41 As Locke’s formulation emphasizes, the thief is not merely stealing my property, but also subjecting me to his power, which makes it harder for me to resist more grievous wrongs than stealing my property. The assault on my right (to property) equally assaults my capacity to resist additional assaults, particularly if the property he takes includes my can of Mace. Many rapes begin as ‘mere’ robberies. Of course, if somehow I know that the thief has no designs beyond taking my property, then the use of lethal force in self-defense cannot be justified. But in the normal case when I do not know, the thief ’s use of force entitles me to assume the worst. 42 Uncertainty plays an enormous role in the morality of war. Notably, it helps explain why enemy soldiers are legitimate targets, regardless of their moral innocence and regardless of whether they pose a current threat. Their innocence is undetectable from a distance; so is the likelihood that they will be among the conscientious objectors who shoot to miss. From a distance, their uniform is all we see, and the uniform signifies commitment to the war project. We may know that they are hapless draftees fighting under duress, not out of commitment. In Oliver Wendell Holmes’s brutally graphic words, their government ‘seizes them, and marches them, with bayonets in their rear, to death.’ 43 If so, then in an important sense, they have done nothing to forfeit their right to life—nothing, that is, except don the uniform. But, from a distance, their adversaries have reason to believe that anyone who can be compelled to don the uniform can be compelled to fight. 41 John Locke, Two Treatises of Government, bk. II, ch. III, 279–80 (Cambridge: Cambridge University Press, 1960). Rodin discusses and objects to this passage in War and Self-Defense, 135–6. I will not consider his objections here, as they do not bear directly on my main line of argument. 42 For this reason, I think that Rodin’s line between the permissibility of using deadly force to defend against serious threats to bodily integrity and the impermissibility of using deadly force to defend against ‘bruises, cuts, and other readily healed injuries’ underestimates the difficulty of telling how far my assailant will go. Rodin, War and Self-Defense, 44. Perhaps if the assailant is a small child I can be confident that I have nothing worse to fear than bruises. But even that is not a sure thing in parts of the world cursed with Kalashnikov-toting child soldiers. Peter Singer’s chilling and depressing study of child soldiers quotes a 14-year-old combat veteran who remarked that he is always terrified when the Small Boy Units arrive as reinforcements, because the 8-year-olds will shoot for any reason or no reason at all. P. W. Singer, Children at War (New York: Pantheon, 2005). 43 Oliver Wendell Holmes, Jr., The Common Law., Mark DeWolfe Howe ed. (Cambridge, MA: Harvard University Press, 1963/1881), p. 37.

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For all you know, the sleeping enemy you refuse to attack today has embarked on the war project of killing you tomorrow; and that is what, in the conventional morality of war, entitles you to attack someone who may be morally innocent and who may never pose a threat to your life. This line of argument derives from a more general point about the structure of rights: that primary rights include derivative, prophylactic rights designed to forestall standard threats to the primary rights before they happen. This is a familiar point in constitutional theory. 44 To illustrate, the US Supreme Court once held that a civil rights group being harassed by the state did not have to turn over its membership list to the state, because doing so would frighten away wouldbe members, thereby chilling their right to freedom of political association. 45 Although the US Constitution does not explicitly protect the right to privacy of membership lists, the Court reasoned that this right, as a prophylactic protection of the right to political association, was therefore incipient in the latter. The explicit right is surrounded by a ‘buffer zone’ of additional rights. For our purposes, the important conclusion is that the right to defend basic rights through force may also include the right to neutralize serious threats to those rights, when failing to do so will make it impossible to defend against the threat once it has been launched. Of course, there are limits to how far the notion of prophylaxis can reach. Presumably, the prophylaxis must be proportional to the magnitude and likelihood of the threat, and the threshold level of expected loss of basic rights that justifies prophylactic uses of force should be high. Here, it seems to me that the US National Security Strategy sets out a plausible version of the principle: ‘The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.’ The NSS proposes, in other words, a sliding scale, where a high-magnitude threat justifies a broader scope of preventive warfare.

7.6. THE SIGNIFICANCE OF WMD US preventive-war policy focuses on WMD—rightly so, I believe. The special significance of WMD is the possibility that a small group of terrorists could smuggle in a weapon capable of launching a genocidal attack against a city. I use the word ‘genocidal’ quite deliberately here, not simply for its shock value. The legal characteristic of genocide lies in its attempt to destroy a group as such (in the words of the Genocide Convention)—to destroy its members, that is, because of who they are and not what they have done. International law adds that an attack is no less genocidal if it aims ‘merely’ to destroy the group in a specific locale—the 44 I defend this view in David Luban, ‘The Warren Court and the Concept of a Right’, Harvard Civil Rights-Civil Liberties Law Review 34 (1999), 11–17. 45 NAACP v. Alabama, 357 U.S. 449 (1958).

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Bosnian Muslims of Srebrenica, for example. 46 A WMD attack against New York City would, in these terms, amount to genocide. What are WMD? The rubric commonly refers to three categories: nuclear weapons, chemical weapons, and biological weapons (the latter two often referred to collectively as CBW). Yet not all of these are, strictly speaking, weapons of mass destruction—not more so, at any rate, than so-called conventional weapons. The sarin gas that Aum Shinrikyu released in the Tokyo subway was terrible, but no more so than the bombs that al-Qaeda detonated in Madrid commuter trains. Poison gas cannot kill masses of people without aerial delivery systems, such as the airplanes used by Saddam Hussein in the Anfal campaign to gas the Kurds. But with aerial delivery systems, conventional weapons can also kill masses of people. We have a tendency, I fear, to underestimate the devastating potency of conventional weapons. In World War II, entire cities were razed by conventional bombs. And in recent decades, the United States has constructed conventional bombs whose power approaches that of the 12-kiloton Hiroshima atomic bomb: the ‘daisy cutters’ used in Vietnam contained 6.3 kilotons of high explosive, while the ‘massive ordinance air blast bomb’ (MOAB, the ‘mother of all bombs’)— developed for use in Iraq but, thankfully, never used—contains 9.3 kilotons of a more potent high explosive. It would be fanciful to think of such terrifying weapons as, somehow, less capable of inflicting mass destruction than shells of poison gas. A 2,000 bomb dropped on an apartment building will kill hundreds of people. So too, not all biological weapons can kill on a greater scale than conventional weapons: anthrax, which is hard to transmit from person to person, would require continuous aerosol dispersion to cause more deaths than a similarly targeted bombardment of daisy cutters. We should therefore distinguish WMD from two other categories: unconventional weapons, and banned weapons. Unconventional weapons are simply weapons other than explosives, projectiles, and the edged weapons of yesteryear. Not all unconventional weapons are WMD, and not all are banned—for, of course, nuclear weapons are not banned. Banned weapons are a grab bag of devices that are thought to cause unnecessary suffering, or to be inherently indiscriminate. They include the weapons covered by a dozen or so treaties, including the Convention on Conventional Weapons (CCW) and its protocols (on fragmentation weapons, land mines, incendiary weapons, and blinding laser weapons), the Biological Weapons Convention (BWC), the Chemical Weapons Convention (CWC), and historical prohibitions on poisons and dum-dum bullets. Most of these are neither WMD nor unconventional weapons. 47 46 Prosecutor v. Krstic, ICTY Appellate Chamber, Judgment of 19 April 2004, §§15–21, available at http://www.un.org/icty/krstic/Appeal/judgment/index.htm 47 The CCW and its protocols each have fewer than 100 states parties, whereas the BWC and CWC have 151 and 168 parties, respectively. The United Kingdom is party to all these treaties, whereas the United States has not joined the protocols on incendiary weapons or land mines. See http://www. icrc.org/Web/eng/siteeng0.nsf/htmlall/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf

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Ostensibly, weapons are banned when they cause unnecessary suffering, but in my view the distinction between necessary and unnecessary suffering caused by devastating weapons teeters on the brink of nonsense. Historically, weapons have been banned for a variety of reasons. In 1139, the Church banned bows and crossbows, presumably because these were weapons that a mere commoner could use to kill a mounted knight at a distance. Poisons and poison gas were banned in the wake of World War I because of troops’ instinctive horror at this way of dying, not because gas was deadlier than machine guns. Similar concerns—the ‘horror factor’—have prompted the ban on blinding lasers and incendiary weapons. These weapons are no more lethal or more agonizing than permissible weapons, but they somehow seem more horrifying. Thus the real motivation for banning them arises from what Paul Kahn derisively labels ‘the aesthetics of death’. And the unfortunate result of focusing on the aesthetics of death has been relative callousness toward the horrifying damage caused by lawful, conventional weapons, coupled with a false belief that banned or unconventional weapons pose a deadlier danger than mere guns and bombs—that banned or unconventional weapons are, uniquely, WMD. 48 For purposes of preventive-war doctrine, it does not matter whether a weapon is banned or not, nor whether it is conventional. What matters is the magnitude of damage threatened by a single use of the weapon. Viewed in these terms, the only genuine WMD are indeed those that cause mass destruction: nuclear weapons and highly infectious biological agents such as smallpox. These share two crucial properties: first, they are small enough to smuggle, or to deliver to their target with a single missile; and second, they are destructive enough that a single use of the weapon can kill tens of thousands of people. Taken together, these two properties imply that a terrorist who successfully smuggles the weapon into an enemy city could, in effect, destroy a mass of people equivalent to that of a bombing campaign. (One consequence of drawing these distinctions is that even if Saddam Hussein had not destroyed his chemical weapons, they would not have qualified as WMD for preventive-war purposes by the United States. Saddam lacked the means to launch them against the US mainland.) Once an adversary acquires such weapons, the weapons themselves deter attacks designed to disarm the state. If so, failure to halt the adversary before the weapons become operational means failure to safeguard against the threat. If the threat is genuine, and nothing less than preventive warfare can forestall it, preventive warfare seems justified.

48 The focus on WMD is appropriate for the United States because its geographic isolation and vast military might largely immunizes it from large-scale attacks launched with conventional weapons. Other states, more vulnerable to large-scale conventional attacks against their populations, might be justified in launching preventive wars against hostile rogue states if the latter begin a major military buildup. The principle in the NSS would have permitted a preventive attack by France or England against Hitler’s regime once his remilitarization policies became clear. PW, 228–30.

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7.7. ROGUE STATES In my previous paper (see n. 2), I argued that one may be entitled to think the threat is genuine when the adversary one confronts is a rogue state. The phrase ‘rogue state’ was perhaps an unfortunate choice. Many think that the phrase is nothing more than a propagandistic term of abuse by US politicians, bandied about to demonize designated enemies of American interests—perhaps as a preliminary step to invading them, bombing them, or launching cruise missiles in their direction. That may be true, and if so it would have been better to find a less freighted term. But for present purposes, let me stay with the phrase ‘rogue state’ and ask whether a nonpropagandistic meaning can be assigned to it. I think the answer is yes. In fact, however, more than one nonpropagandistic meaning can be assigned to it, and it is important to distinguish among them. The core idea in thinking of a state as a ‘rogue’ is that it exhibits contempt for the rule of law. 49 But we must distinguish between contempt for domestic and international rule of law. In the domestic sense, rogue states are despotic states— states that crush opposition parties, and engage in arbitrary arrests and detentions or even executions and disappearances. 50 But a state can be a domestic rogue without thereby becoming an international rogue. Even despotic states may abide by their international legal obligations (aside from their international obligations to respect democratic and human rights domestically); and they do not necessarily pose threats to their neighbors. Argentina and Chile had no military designs against other states during their dirty wars, and today Burma and Cuba pose no international threats despite bad human rights records. Rogue states in the domestic sense may arguably be targets of legitimate humanitarian interventions; but unless a state exhibits contempt for the international rule of law, there is no case for preventive military action. Even contempt for the international rule of law will not suffice to make a state a rogue for purposes of justifying preventive war. The contempt a state shows for the international rule of law must lie specifically in violations of rules against 49 Here I am following Anthony Clark Arend, ‘International Law and Rogue States: The Failure of the Charter Framework’, New England Law Review 36 (2002), 735. ‘[A] rogue state is one that does not follow the rules. While almost all states may at times violate international rules, a rogue state would be a perennial violator.’ This makes a rogue state sound like an outlaw state, and in some respects that may be true. But, as I argued in ‘Preventive War’, Rawls’s definition of an outlaw state as any state willing to use war to advance its rational (not reasonable) interests is too narrow, because outlaw states may pursue irrational ideological interests as well as rational interests. PW 231, n. 42. 50 Theorists may draw further distinctions between despotic states, undemocratic states, and systematic human rights violators, because it matters theoretically whether the value that rogues violate, violation of which makes them rogues, lies in the rule of law, democracy, or universal rights and human dignity. But for present purposes there is no need for the distinction, and I will set it to one side. Moreover, legal positivists may object that a state can be despotic without violating the rule of law, if its laws are themselves repressive and despotic. In fact, however, tyrants seldom build their evil designs into written laws, or bother to repeal the evenhanded and enlightened legal codes they inherited. Even the Hitler regime bypassed positive law in the interest of despotic efficiency. So, even if despotism and lawlessness can be distinguished in theory, the practical distinction is unimportant, and I will ignore it.

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armed attacks or state-sponsored terrorism (and not, say, violations of trade law or environmental law). More specifically, what matters is propensity for future armed attacks. My conception, then, is simply that a rogue state is a threat state. In the previous paper (see n. 2), I argued that ‘[f]or purposes of preventive war doctrine, the most important characteristics are militarism, an ideology favoring violence, a track-record of violence to back it up, and a build-up in capacity to pose a genuine threat.’ (PW 230–1). The operative phrase here is ‘for purposes of preventive war doctrine’: the point is that a state can be a ‘rogue’ in other senses and for other purposes. A state can be a brutal human rights violator and an international noncooperator, with erratic policies and a megalomaniacal ruler spouting crazy rhetoric, and still pose no threat to people other than its own. The four criteria in the quoted sentence are threat-predictors. As such, the list need not be regarded as exhaustive. As Arend suggests, other tell-tale signs of rogueness include covert action, support for rebels in other states (including financial, logistical, and political support), and support for terrorist actions. 51 We will consider the implications of these criteria presently. For the moment, the important point of the previous two sections is this: preventive war may be justified against a rogue state (in the sense given here, a threat state) aiming to construct WMD (in the sense given here, weapons that can cause mass casualties through a single use), if the state’s intentions are hostile, because if the state succeeds in constructing WMD it may be too late to forestall a genocidal attack. And the NSS statement quoted earlier offers a principle justifying preventive war that is at least plausible: the higher the stakes in a single attack by the enemy, the lower the threshold for preventive action.

7.8. THE CONSPIRACY THEORY OF LOST INNOCENCE Even if a state is an international rogue, and even if it aims to acquire WMD, it may lack the intention to use them. In my previous paper (see n. 2), I insisted that the estimated likelihood of an attack by a rogue state be based on intelligence concerning its intentions, not merely probabilities (PW 233–34). Otherwise, small probabilities that may represent nothing more than the possibility of something unexpected and weird happening will quickly mount up. The rights objection to preventive war provides another reason for insisting on a wrongful intention on the part of a rogue state as a precondition to justifiable preventive war. That objection, recall, holds that attacking another person violates that person’s rights unless they have done something to make them, in McMahan’s words, ‘morally liable to military attack’. By its very definition, a preventive war aims at a threat that has not yet resulted in an attack, or even an imminent attack. What, then, has the adversary done to lose its right not to have war launched against it? If this question has an answer, it must be that creating an emerging threat 51

Arend, 739.

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makes the adversary morally liable to military attack. However, the activities that create the emerging threat—activities such as purchasing aluminum tubes, building a nuclear reactor, hiring smallpox researchers, vaccinating the entire army against anthrax, and developing medium-range missiles are ordinarily thought to be within states’ sphere of sovereign activity. The only thing that makes them into an emerging threat must be the state’s purpose for engaging in them. Hence, forming the wrongful intention is what makes the state morally liable to military attack. This idea seems immediately vulnerable to a double objection: first, that forming an intention is a mental event, and mental events do not make us morally liable to violence; and second, that states are not the sort of beings that have mental events to begin with. Both objections are well-taken, and so the view needs to be reframed. One helpful idea emerges from Michael Bratman’s well-known ‘planning theory’ of intentions, which holds that intentions should be regarded as elements of larger plans rather than as discrete mental episodes. 52 Without delving into the planning theory, let me simply assert that the kind of wrongful intentions relevant to preventive war are plans. Plans of the relevant sort are not invisible events in someone’s mind, but rather joint enterprises among a cadre of planners, typically memorialized and minuted, but in any event taking place via communications among officials and officers (and not in the hidden recesses of an individual’s mind). Military planning is precisely the kind of group endeavor that intelligence agencies routinely unearth and monitor. Furthermore, plans of the relevant sort are not simply idle chatter or speculation. They are chatter backed by action. In the language of the law, they are conspiracies. A few remarks about conspiracies as the law understands them are in order. Conspiracies, like attempts, are so-called ‘inchoate’ (incomplete) crimes— conversations and other actions, possibly innocent on their own, that become culpable because undertaken in the course of planning and committing another crime—the ‘object offense’. The theory behind criminalizing otherwise innocent actions as conspiracies or attempts is straightforward: they are not really innocent. They are steps the criminal takes on the path to wrongdoing. Conspiracies are blameworthy because the fact that the perpetrator got caught before completing the crime seems irrelevant to the ultimate question of culpability. As a matter of crime control, the public interest lies in stopping crime early, and it would frustrate the purposes of law enforcement if efficient policing simply resulted in releasing those bent on crime. Theorists of the criminal law also note that conspiracies pose a greater danger than solo criminal plans, both because groups can carry out more complex crimes than individuals can, and because well-known phenomena of conformity and groupthink can motivate wavering conspirators to do evils that they might never be willing to do on their own.

52

Michael E. Bratman, Intentions, Plans, and Practical Reason (Cambridge, MA: Harvard University Press, 1987).

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At the same time, everyone understands that merely talking crime-talk may be nothing more than idle chatter. Teenagers hanging out at a strip mall, passing a joint or drinking a six-pack, may while away the time with conversations that begin ‘Hey, why don’t we rob the Seven-Eleven? . . .’ without ever seriously planning to do so. The basic US conspiracy statute requires not only a group plan but also at least one overt action taken in furtherance of the plan. 53 The overt action requirement reflects a legislative willingness to tolerate the risk of criminal discussions so long as they never amount to anything more than words, but unwillingness to tolerate the greater risk when the plan passes from word to even a single deed. Different societies may draw the line differently. Some might require not just one overt action but several, or add on a requirement that the overt action be significant. Others, less tolerant of risk, might not require any overt action at all. 54 Still others, more willing to tolerate actions that are not themselves crimes, will not enact a separate crime of conspiracy at all. 55 We may imagine a continuum, where the most risk-averse societies will criminalize conspiratorial planning with no overt acts, while the most risk-tolerant will not enact criminal conspiracy statutes at all. The catch-all US conspiracy statute, requiring one but only one overt act, falls somewhere in between. Where should the threshold fall for conspiracies that waive a state’s right against invasion? I suggest drawing the line at a less risk-averse point than the US statute. An emerging threat becomes serious (or so I propose) when a rogue state’s plans are backed by at least significant and persistent overt actions to further the plan. Mere talk, or even talk backed by a single overt action, hardly indicates a serious threat. Serious, persistent overt actions do. For example, had the evidence of Iraqi weapons programs that the United States and the UK presented to the UN and published in the Downing Street White Paper been true, it would have indicated a hostile plan accompanied by significant and persistent overt acts. It would have sufficed to justify a preventive war, if launched by the likely targets of Saddam’s aggression (Iran, Kuwait, possibly Israel). But it was not true. In short, the conspiracy to launch an eventual attack is itself a wrongful act, sufficient for a state to lose its immunity to preventive invasion.

7.9. THE CONSPIRACY PARADOX David Rodin counters that this conspiracy account of preventive war ‘is subject to an unpalatable paradox.’ 56 The problem is that when a state plans a preventivewar against another state conspiring to attack it, the preventive-war plan is itself a 53

18 U. S. C. §371. That is the route that the United States has taken with drug importation: the narcotics-conspiracy statutes contain no overt act requirement. 21 U. S. C. §§846 and 963. 55 Civil law jurisdictions do not typically criminalize conspiracy. For that reason, the Rome Statute of the ICC substitutes a so-called ‘joint criminal enterprise’ theory of criminal liability, which differs from conspiracy because it applies only when an object offense has actually been committed. 56 Rodin (see ch. 6 in this volume), p. 167. 54

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conspiracy to attack another state. The US plan to invade Iraq involved group planning accompanied by serious, persistent overt acts—or, in Rodin’s words, ‘manifest intent and active preparation’. As Rodin explains the paradox that results: If manifest intent and active preparation together constitute a wrong sufficient to ground preventive war, then any doctrine of preventive war is impermissible. If on the other hand doctrines of prevention are permissible, then the combination of manifest intent and active preparation are presumably not in themselves wrong and this implies that there is no sufficient moral ground for preventive war. . . . On the conspiracy account, if preventive wars are permissible, then doctrines of preventive war such as the National Security Strategy are impermissible. If doctrines of preventive war are permissible then preventive wars are impermissible. 57

I believe that this paradox is more apparent than real. Rodin assumes that ‘manifest intent and active preparation together constitute a wrong sufficient to ground preventive war.’ But the question remains: manifest intent to do what? I have argued that the justification for preventive war derives from the legitimate interest in warding off large-scale attacks on basic human rights; and so, unless the preventive war itself aims at a large-scale attack on basic human rights, planning for it is not wrongful, even though the large-scale attack on human rights the preventive war aims to forestall is wrongful. Paradox lost. Or is it? The targets of a preventive war cannot know that once they are conquered their basic rights—including their property rights and political rights— will be honored. Their assailant may assure the world that its war aims go no further than removing an emerging threat, but why should the people under attack believe them? Once vanquished, they are at the mercy of their conqueror. The Hobbes/Locke argument about uncertainty implies that no such target should ever be confident that its conqueror has only limited, self-defensive aims. That is equally true even if, as a matter of fact, the conqueror does have limited, selfdefensive aims. Thus, the target of a preventive war may reasonably believe itself justified in launching its own preventive war. This is the self-fulfilling prophecy problem raised at the outset of this chapter. In this situation, are both states justified in launching preventive war against each other? If so, the self-fulfilling prophecy problem seems to revive Rodin’s paradox. A preventive war can be justified only if the adversary’s war plans are wrongful, and that seems to imply that in the self-fulfilling prophecy situation both sides’ preventive-war doctrines are simultaneously justified and wrongful. But here too, the paradox is only apparent. To see why, it is important to distinguish among several cases. 58 In Case 1, State A genuinely conspires an unjust attack against State B. In response, B plans a 57

Ibid. Here and in the ensuing paragraphs, I borrow liberally from ideas about these intricate issues raised in discussion by Jeff McMahan, David Rodin, and Walter Sinnott-Armstrong. McMahan proposed separating out different cases, and I have gratefully borrowed some of his typology. 58

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preventive war against A. According to the conspiracy account of preventive war, A’s plan is unjust, A thereby forfeits its right against preventive intervention, and as a consequence B’s interventionist plan is just. Even though A’s people inevitably have reason to fear wrongful treatment at B’s hands if they lose the preventive war—a fear that in other circumstances might justify their own preventive war against B—their state does not come into the situation with clean hands, and it has no right to launch preventive war against B’s justifiable preventive war. This is true even though B’s preventive war will inevitably kill soldiers and civilians in A who are not part of the conspiracy and not liable to lethal attack. As we have seen, this is true in all wars, and unless we accept pacifism, the destruction of innocent life (tragic and senseless as it surely is) does not by itself make an otherwise just war unjust, provided it satisfies proportionality. Nor, therefore, does it justify A in launching a preventive war to forestall B’s preventive attack (especially because A’s preventive war will itself inevitably kill innocent men and women). Instead, A has the alternative of abandoning its conspiracy in a public and verifiable way, in which case B has no need to launch preventive war. 59 Case 2, the self-fulfilling prophecy case, is different. Here, A and B each reasonably believes that the other is planning a preventive war against it, and (using Locke’s reasoning), each reasonably but falsely fears that if it loses, the attacker will go on to commit intentional and large-scale rights violations against its people. Here, neither side’s preventive war is morally justified, because a preventive war can be justified only if the other side actually intends large-scale rights violations, which in Case 2 we assume is untrue. But both sides’ wars might be epistemically justified (by which I mean nothing more than that both sides reasonably but falsely believe that the other harbors the baleful intentions that morally justify preventive war). Because neither state actually harbors the intentions that would morally justify the other in launching preventive war, there is no theoretical paradox in the situation. The seeming contradiction reflects nothing more than the irreducible gap between a state’s rights-respecting intentions and the adversary’s reasonable incredulity about them. But because both wars may be epistemically justified, the situation is dangerously unstable, and places pressure on both sides to launch the preventive war the other fears. This is, let me repeat, a practical instability, not a theoretical contradiction—and it is one of the chief reasons I offered in my previous paper for rejecting a general doctrine of preventive war. There is, finally, Case 3, in which both A and B really do plan unjust invasions of the other, replete with subjugation and basic rights violations of the other’s 59 Some critics of the US invasion of Iraq believe that Saddam Hussein did this—he dismantled his WMD programs, proclaimed that he had done so, and permitted UN inspectors back into Iraq. Conversely, some defenders of the US invasion counter that, out of fear of seeming weak, Saddam actually behaved as though his proclamations and permissions were crafty and insincere, aiming to convey that really he still did have WMD programs—an ultimately unsuccessful double game of actually disarming, stating that he was disarming, but doing so in a way that would make it seem that he was lying.

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people by the victorious side. (For short, call this a war of subjugation.) This may finally seem to be the paradoxical case, because, faced with a war of subjugation, each side may be justified in launching preventive war, in which case it appears that the preventive attacks are simultaneously just and unjust. But even here, the paradox dissolves on closer examination. Each state, fearing a war of subjugation by the other, may justly plan a preventive war to forestall it, but may not justly plan to make it a war of subjugation. Neither plan to launch a preventive attack is simultaneously just and unjust. It is unjust if it plans subjugation, but not if it plans merely the minimum preventive intervention necessary to ward off the adversary’s plans. To the extent that both A’s plans and B’s restrict themselves in this way, Case 3 resolves into Case 2. At that point, both states ought to discontinue their plans, because their adversary no longer plans a war of subjugation and, as we saw in discussing Case 2, under these circumstances neither A nor B is still justified in launching a preventive war. To the extent that one of them continues to plan a war of subjugation, Case 3 resolves into Case 1. And if both A and B plan wars of subjugation, neither side’s plan is morally justifiable. Rodin’s paradox does not appear in any of the cases. Nothing should make us happy about this outcome. A basic existential situation of mutual suspicion, mutual jeopardy, and mutually justified preventive war seems like a recipe for (in Brooks’ phrase) ‘war everywhere’ and war all the time. In such a situation, only mutual deterrence, skilled diplomacy, and the deeply stressed peacekeeping and peacemaking abilities of international institutions hold us back from the abyss. The theory of preventive war I defended aims to pare back the situations of permissible preventive war to those in which rogue states threaten large-scale assaults on basic rights; and it may be that the number of genuinely rogue states is small enough that permissible preventive wars will be few and far between. But, as I have just argued in response to Rodin’s paradox, rogueness is to a degree in the eyes of the beholder. The moment that states announce preventivewar doctrines like the NSS, other states may have justifiable suspicions that these are rogue states. Most Americans will bridle at the suggestion that anyone might justifiably regard the United States as a rogue state. But with even a moderate effort to put oneself in another’s shoes, Americans should recognize that others have reason to be suspicious of US motives, especially having seen the eagerness of the US government to topple Iraq’s government. McMahan writes that ‘there are a great many states that have been victims of unjust American intervention (Cuba, Chile, Guatemala), American military aggression (Vietnam, Laos, Cambodia), American terrorism (Libya), and American-sponsored terrorism (Nicaragua, El Salvador)’, 60 and these are judgments widely shared around the world. As McMahan quickly acknowledges, they are also controversial value judgments. But that only reinforces the point that ‘Americans are not alone in thinking that whatever threats they face must be unjust while any threats they pose must be just.’ 61 I do not want to prolong an already lengthy chapter by addressing the complex 60

McMahan, ‘Preventive War and the Killing of the Innocent’, 174–5.

61

Ibid.

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question of whether the United States could justifiably be regarded as a rogue state. But the question is important enough that I take it up in Appendix 1 of this chapter. Here, I will add only that the suspicions of US intentions harbored by others mean that a great deal turns on the US reconstruction of Iraq. The United States must show that it is everything it claims to be: an upholder of human rights, a supporter of Iraqi democracy, and a bulwark of the rule of law. Only with solid, public evidence of an exemplary and morally upright occupation can the United States insist that its preventive-war doctrine deserves no suspicions on the part of other peoples that their basic human rights are in jeopardy from an American conspiracy to attack them. At this writing, in September 2006, those prospects appear quite bleak.

7.10. CONCLUSION There is no question that a preventive war like the war in Iraq will kill and maim innocent people, military, and civilian, who have done nothing to forfeit their right to life and limb. That is the rights objection. But, as I have argued, exactly the same objection applies to every war, including wars of self-defense. All war runs into the rights objection, and a legitimate preventive war is no worse off in this respect than any other. Admittedly, that is not high moral praise for preventive war. But who would have expected high moral praise for acts of supreme violence? Even Achilles weeps in Priam’s presence, taking no pride that he has become ‘a grief to you, a grief to all your children’. 62

APPENDIX 1: IS THE UNITED STATES A ROGUE STATE? In the superheated political environment leading up to the 2003 Iraq War, one frequently heard vitriolic comments by opponents of the war who charged that the United States was itself behaving like a rogue state. Many Americans found such a charge so hyperbolic, so pathologically anti-American, that there was no need to dignify it with a reply. Those who did reply, particularly conservative and nationalist writers, frequently launched the furious countercharges of ‘moral relativism’ and ‘moral equivalence’ against anyone who would equate the United States with the ‘axis of evil’ in any respect whatever—accusations reminiscent of 1980s polemics against antinuclear advocates for preaching the moral equivalence of the United States and the USSR (which in fact they seldom did). Indeed, for 62 Iliad, bk. 24, line 633. One of the great virtues of Dave Grossman’s On Killing is its frank understanding that a great many soldiers who kill have the same reaction, from the Napoleonic-era British soldier who ‘reproached myself as a destroyer’, to the Israeli lieutenant who said that what he had done is ‘the last thing that should happen anywhere’, to the US Special Forces officer in Vietnam who killed and then ‘dropped my weapon and cried.’ Lt. Col. Dave Grossman, On Killing (Boston, MA: Little, Brown, 1996), 88.

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writers of this temper even raising the question of whether the United States was behaving like a rogue state already shows an almost willful incapacity to distinguish good from evil. 63 I believe that two mistakes underlie American nationalists’ hostility to the very raising of the question of whether the United States is a rogue state. The first comes from failure to distinguish properly between the domestic and international senses of ‘rogueness’, so that the accusation sounds like a claim that the Unites States is a domestic despotism, which is obviously not a serious charge deserving a thoughtful reply. Once we draw the distinction, however, it becomes possible to agree that the United States has an exemplary constitutional government, but leave open the question of how exemplary US foreign and military policy is. The second mistake is more interesting. Part of the reason that Americans find it impossible to take seriously the question of whether their government is a rogue state lies in their understanding that rogue states are those that break from the normative order of world politics. As the world’s sole hyperpower, dominant militarily, economically, and in many ways politically and culturally as well, the United States is a cornerstone of the current normative order. As such, the United States can no more be an outlier to the normative order than the standard meterstick can fail to be a meter long. The United States helps define the normative order. The idea here is that ‘rogueness’ means deviance from a baseline ordering of international affairs by the most prominent powers—what Henry Hart and Albert Sacks called an ‘institutional settlement’. Lying as they do at the core of the institutional settlement, prominent powers cannot systematically deviate from the baseline because they are the baseline. Within the Pax Romana, the provinces of Judea or Germania could be rogue states, but Rome herself never could. An institutional settlement is not a social contract, because it need not be consensual, either actually or hypothetically. Indeed, the ordering of world affairs has always been a matter of power and imposition, nearly the diametrical opposite of consent. Yet, as Hart and Sacks stress, it may well be that the only alternative to whatever stability an institutional settlement provides is violence and chaos—so even institutional settlements on imbalanced terms exert some normative pull simply because they are settlements. Consider by way of illustration the UN system. It privileges the P-5, the permanent members of the Security Council. Only the P-5 possess the veto power, and only the Security Council has the authority to take action against threats to international peace and security. The only reason that the P-5 possess privileged status is that they are the most powerful states. The UN Charter system offers an institutional settlement, and the terms of this settlement give normative authority to the decisions of the great powers. The normative authority of this institutional settlement, an idealist set of institutions erected on a realist base kowtowing to the powerful states, is that it provides a way out of international anarchy. Consider as well the system of customary international law. Any state can breach customary international law, but the peculiar fact is that if powerful states breach it in major and systematic ways, the law (consisting as it does of state practice undertaken from a sense of legal obligation) changes. Rules of customary international law derive from the practice of the most influential states, and so their practice defines the normative order of international law. As norm-makers, they can breach the law, but by definition they cannot be what Arend calls a rogue state: a ‘perennial violator’. Their practices are automatically lawmakers, not lawbreakers. 63

For example, see Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003), particularly ch. 1.

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It seems to me that Americans who cannot take seriously the proposition that the United States might be a rogue state have adopted the view described here, which for want of a better label I will call normative realism. Rogues are those who buck the system, not the United States, which is the system. The trouble with normative realism is that it systematically and unapologetically mistakes might for right. It simply cannot be that whatever the hyperpower does acquires a halo simply because it is the hyperpower. That view, and not the view that the hyperpower may be a rogue, is the true mark of moral relativism. The analogies to the UN system and to customary international law are weak. Both are rooted in a positivist or conventionalist conception of international law. On this conception, treaties such as the UN Charter, like customary law, have their source in their recognition by states. But state recognition implies no moral judgment on the institutional settlement that results; as positivists such as HLA Hart insist, judgments of legal validity based on positivist criteria do not imply moral approbation. Law can be valid but bad. And a state can lie at the center of the normative order of world politics while still being a rogue, in the sense defined here: a serious military threat to other states. Contrary to the normative realist, we must insist on judging the hyperpower by impartial standards, rather than asserting that simply because it is the hyperpower it sets the standard. To judge the United States by impartial standards means asking whether the United States poses a serious military danger to others according to the criteria already set out. The answer may well be yes. In what I believe to be the best contemporary discussion of US military policy, Andrew Bacevich argues forcefully that the United States has moved dangerously in the direction of militarism since the Vietnam War, where militarism means ‘a tendency to see international problems as military problems and to discount the likelihood of finding a solution except through military means.’ 64 The American people, in Bacevich’s view, ‘have fallen prey to militarism, manifesting itself in a romantic view of soldiers, a tendency to see military power as the truest measure of national greatness, and outsized expectations regarding the efficacy of force.’ 65 Obviously, such judgments about the body politic are hard to verify, but it is hard to deny that militarist values (in Bacevich’s sense) form a powerful stain in today’s culture, where opinion polls show that the military is the most trusted institution in American society, the Hummer has displaced the Mercedes as the toy of choice, and a melodrama about the presidency titled ‘Commander in Chief ’ replaced ‘West Wing’. More importantly, for the last quarter century, the United States has lived under the Carter doctrine: ‘An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.’ 66 So long as Middle Eastern oil remains a vital interest of the United States, the US military footprint will remain large in the world’s most volatile region, and US readiness to use force will dominate its foreign policy. On the other hand, the United States is nowhere near the second criterion: having a national ideology that glorifies violence. To be sure, the United States is the only state to have dropped atomic bombs on cities full of innocent civilians, without the slightest hint of national regret or self-recrimination. It continues to amass WMD, and has never 64 Andrew J. Bacevich, The New American Militarism: How Americans are Seduced By War (New York: Oxford University Press, 2005), 2. 65 Ibid. 66 Jimmy Carter, ‘State of the Union Address, 1980’, January 21, 1980, quoted in Bacevich, 181, and discussed, 181–204.

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announced a no-first-use policy for its nuclear arsenal. But the ideas about democracy, markets, and rights that organize American political discourse are a far cry from Leninist theories of class war or fascist glorification of violence as biological destiny. What about Arend’s additional criteria of rogueness: covert operations, support of rebellions in other countries, and support for terrorism? Few would deny the breadth and effectiveness of US covert operations in overthrowing democratically elected governments in Iran and Chile; or support for rebels in Nicaragua and Afghanistan (the latter of whom became today’s anti-American terrorists). National security scholar Daniel Byman offers the United States as one of four case studies of states with a history of tolerating terrorists, because of long-standing toleration of Irish-American financial support of the IRA; 67 and, in the 1980s, the United States gave at least tacit support to paramilitary terrorists in El Salvador. Finally, the United States has amassed a substantial track record of indifference or hostility to the international law governing the use of force when it proves inconvenient to US interests. This includes ignoring the adverse ruling of the World Court in the Nicaragua case, undermining the International Criminal Court and threatening to use military force to free US nationals from its clutches, ferociously loopholing the Geneva Conventions— and, of course, invading Iraq on a debatable set of legal arguments about what existing Security Council resolutions did or did not authorize. Nothing reveals the current US fear and contempt of international law more strikingly than the 2005 National Defense Strategy of the United States, produced by the Pentagon and signed by the Secretary of Defense: ‘Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.’ 68 To lump the institutions of international law together with terrorism as ‘a strategy of the weak’ reveals a hatred for the international rule of law that is, to say the least, startling. Thus, along several dimensions that can be regarded as yardsticks of rogueness, the United States can reasonably be suspected of veering toward rogue status, without implying grand theories of moral equivalence.

APPENDIX 2: BUCHANAN’S OBJECTION TO GENERALIZATION ARGUMENTS Another objection to my view appears in Allen Buchanan’s chapter in the present volume. Buchanan criticizes an objection to preventive war that he labels the ‘bad practice’ objection: ‘Too many wars would be undertaken on the basis of false or unjustified predictions of future harm or because the prospect of future harm would be used as a pretext for aggressive war, or both.’ 69 The ‘bad practices’ objection forms a central part of my analysis of the justifiability of preventive war—it is step (2) in the outline of the argument I presented at the beginning of this chapter. Buchanan argues that the ‘bad practices’ objection rests on doubtful premises. One of them is this: ‘(a) it is always wrong to act on a principle which, if generally accepted, would produce unacceptable results.’ 70 Without this premise, the ‘bad practices’ argument can explain why ‘general acceptance of a principle that allows 67

Daniel Byman, Deadly Connections (Cambridge: Cambridge University Press, 2005). 2005 National Defense Strategy of the United States, 5, available at http://www.globalsecurity. org/military/library/policy/dod/nds-usa_mar2005.htm 69 Buchanan, ‘Justifying Preventive War’, (ch. 5 in this volume, p. 128). 70 Ibid., 129. 68

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preventive war would be wrong’, but not why any particular preventive war would be wrong. 71 Buchanan writes, The difficulties with premise (a) are well-known from the critical literature on the role of generalization principles in ethical judgment. The most obvious problem is that there are innumerable acts that are permissible even though it would be disastrous if everyone did them—for example, devoting one’s life to the solution of the Trolley Problem, or closing one’s eyes for one minute at a particular time of day. 72

Obvious though it may seem, this is a false problem. Generalization requires us to test the permissibility of an action by asking ‘what if everyone was permitted to do the action?’ not ‘what if everyone actually did the action?’ 73 To answer the former, correct, question, the fact (if it is a fact) that almost no one would avail themselves of the permission is surely relevant. The fact that almost no one would devote their lives to solving the Trolley Problem, and very few people would close their eyes for one minute at a particular time of day, means that the generalized permission to do either of these things would not be disastrous. What about the permission to launch preventive wars? My argument in PW aimed to show that this permission is so broad that it is tantamount to a general permission for states to launch wars against their military rivals at will (because it is always reasonable to suppose that a military rival poses a distant threat). And we have ample historical reasons to fear that a universal permission to launch war-at-will against rivals would be disastrous. That permission, which allows nations to treat war as an instrument of state, led to the greatest bloodletting in human history, the European Long War that began with Napoleon and ended with World War II. With fifty to sixty million deaths, World War II seemed to the founders of the UN as the most gruesome imaginable reductio ad absurdum of treating war as a legitimate policy choice. According to the UN Charter’s preamble, the aim of the UN is precisely ‘to save succeeding generations from the scourge of war, which twice in our lifetimes has brought untold sorrow to mankind. . . .’ When I wrote PW, I described my position, like that of the UN Charter, as ‘broadly consequentialist’, and at one point ‘rule-consequentialist’ (PW 209, 218, 225). ‘Broadly consequentialist’ may have been misleading, because, as Buchanan has perceived, the critique of preventive war in PW is a kind of generalization argument, not a strict consequentialist one. 74 It is ‘broadly consequentialist’ only in the minimal sense of not being indifferent to consequences when they are terrible enough. In my view, any moral theory must be broadly consequentialist in this minimal sense. Otherwise it is frivolous. Let us return to the premise Buchanan criticizes, ‘it is always wrong to act on a principle which, if generally accepted, would produce unacceptable results.’ I have suggested that the principle should be formulated differently: ‘it is always impermissible to act on a principle 71

72 Ibid. Buchanan, ‘Justifying Preventive War’ (ch. 5 in this volume, ms. p. 4). Here I am following Thomas Pogge, ‘The Categorical Imperative’, in Otfried Höffe (ed.), Grundlegung zur Metaphysik der Sitten. Ein kooperativer Kommentar (Frankfurt, Germany: Vittorio Klostermann, 1989), 172–93; reprinted with revisions in Paul Guyer (ed.) Kant’s Groundwork of the Metaphysics of Morals (Totowa, NJ: Rowman and Littlefield, 1998), 189–213. Pogge attributes this interpretation of the categorical imperative to unpublished lectures of Scanlon. 74 However, as Pogge notes, on the version of the generalization test offered here, the categorical imperative requires us to judge the empirical consequences of any universal permission. Kant’s question, according to Pogge, will be ‘what would the world be like if all the empirical features of our world—such as the fact that very few people want to solve the Trolley Problem—are held constant, and the only detail that changes is that everyone is permitted to perform acts of the kind being evaluated?’ On this reading of Kant, generalization arguments include a consequentialist dimension. 73

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which, if adopted as a universal permission, would produce unacceptable results.’ Under this formulation, the principle is no longer susceptible to Buchanan’s criticism. I would propose one more reformulation, however, to qualify the overly rigorist word ‘always’. Even excellent moral rules can have exceptions in highly unusual circumstances—so a better form of the principle is ‘it is presumptively wrong to act on a principle which, if generally accepted, would produce unacceptable results.’ Buchanan may still object to the principle in this form; but I think it is roughly correct, and if so it appears to remove Buchanan’s objection to the ‘bad practices’ argument. Buchanan’s main point is that the entire enterprise of analyzing the moral justifications of unilateral preventive war is mistaken. He believes that whatever justifications can be offered for preventive war should be evaluated by multilateral institutions, not individual states. I agree with this multilateralist and institutionalist approach. But the institutions Buchanan proposes do not exist—or rather, the UN exists, but does not do what Buchanan argues it should. It may not for the foreseeable future. Until it or some other multilateral institution does what Buchanan proposes, states will still make unilateral decisions about whether to engage in preventive war; and that means that unilateralist theories of the sort offered here will retain their relevance until happier days in international affairs.

8 Preventive War, What Is It Good For? Walter Sinnott-Armstrong

After the horrific terrorist attack on September 11, 2001, US President George W. Bush announced a policy of preventive war. True to his word, Bush soon implemented his policy. 1 The first war occurred in Afghanistan. This war was aimed partly at punishing al-Qaeda terrorists and partly at helping the people of Afghanistan by liberating them from the Taliban and creating a democracy with greater freedom and prosperity. Hence, this war was not purely preventive. Still, one of its goals was to prevent attacks on the United States and its allies by terrorists from training camps in Afghanistan, and Bush admitted that no attacks by Afghanistan were imminent. To that extent the war in Afghanistan was preventive. 2 Bush’s next war was in Iraq. The Iraq War had several announced aims, including the enforcement of UN resolutions and international law as well as helping the people in Iraq partly by removing Saddam Hussein and introducing democracy. Of course, critics charged that Bush’s real aims were to control Iraq’s oil, to help his cronies make money, and to avenge or surpass his father, who had failed to subdue Iraq in 1991. In any case, both sides agreed that one of the main announced goals of the Iraq War was to prevent or reduce distant future terrorist attacks on the United States and its allies, especially attacks with WMD. If this announced goal really was Bush’s goal, which has been questioned, then to that extent the Iraq War was a preventive war. That is how I will view the Iraq War here. 3 Many opponents of the Iraq War responded by denying that any preventive war is ever justified. This reaction goes too far in my opinion. Bush’s preventive war in Iraq is morally wrong, and his policy is too broad, but some exceptional preventive wars can still be morally justified. To see which and why, we need to explore the general moral theories behind these opposing stances. Most of Bush’s arguments for his policy and the Iraq War 1

I shall often refer to Bush as shorthand for his administration or troops carrying out his plans. Some commentators suggest that whether an attack is preventive depends not on the attacker’s goal but only on the nature of the capability, threat, or attack to which the attack responds. However, an attack does not respond in the relevant sense to a threat if the attacker’s goal is not even partly to prevent that threat. The attacker’s goal, thus, determines what it is that the attacker responds to. 3 When a war has several purposes, we can ask whether a particular reason is good enough by itself to justify the war. That is my question here. It is fair, because most defenders of the war claim that the Iraq War’s role as a preventive war is enough to justify it apart from any other reasons for the war. 2

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are about consequences. Bush usually emphasized consequences for the United States, but sometimes he adds consequences for others, including allies in the coalition and Iraqis and others in the Middle East. Either way, Bush dwells on consequences. As his National Security Strategy announces, ‘We will always proceed deliberately, weighing the consequences of our actions.’ 4 In contrast, Bush’s critics often argue that the Iraq War violates absolute rules against certain general kinds of acts that are defined independently of consequences. The most often-cited rule is a prohibition on preventive war. In their view, preventive wars are always morally wrong by their very nature, regardless of their consequences. This practical debate mirrors a deep divide in philosophical moral theory. Consequentialists hold that what we morally ought to do depends on consequences alone. Nothing else counts, except insofar as it affects consequences. Deontologists claim that what we morally ought to do also depends on other factors (such as the agent’s intention or the kind of action) that are independent of consequences. Some deontologists allow consequences to matter as well, but they still think that other factors sometimes make something morally wrong even when it has better consequences. Although Bush’s arguments recall the consequentialist approach, Bush is not a consistent consequentialist. He freely cites deontological rules against some actions he opposes, such as abortion and stem cell research. Even in the case of war, Bush alludes to a right to national defense, which can conflict with consequentialism. Nonetheless, it might seem that consequentialists would support Bush’s war and policy if they agreed with him about the consequences of his war and policy, whereas deontologists could still oppose the war and policy on nonconsequentialist grounds. This appearance might lead Bush’s critics away from consequentialism so that they would have something left to say against Bush if they reached an impasse in arguing about the consequences of the Iraq War. That retreat would be a mistake. The strongest arguments against Bush’s war and policy are consequentialist, not deontological. To show why, I shall develop and defend a version of consequentialism about war. Then I shall criticize the relevant part of the most common deontological alternative, just war theory. Finally, I shall apply all of this theory to preventive war in general and Bush’s war and policy in particular.

8.1. DEEP MORALITY VERSUS PUBLIC RULES My argument will hinge on a certain characterization of the issue. I will assume that both consequentialist and deontological theories are about objective moral wrongness. The question they address is whether certain wars really are morally wrong, not whether people think that they are morally wrong or even whether 4

United States, White House, National Security Council, National Security Strategy of the United States of America (September 2002), 16. http://www.whitehouse.gov/nsc/nss/2002/nss.pdf.

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it is reasonable to think that they are morally wrong. Moreover, these competing theories concern what McMahan calls the deep morality of war. 5 These theories try to specify conditions that must be met for war not to be morally wrong. They do not claim that their conditions should be written directly into public laws of war that are or should be accepted by international groups or enforced by international courts. Such public laws might need to be formulated differently from deep morality in order to be useful in practice. For example, as McMahan argues, many combatants are innocent and nonthreatening, whereas many noncombatants are guilty and threatening, so the deep morality of war should not distinguish combatants from noncombatants. It still might be too difficult in practice to tell who is innocent or threatening, so the public laws of war might need to forbid attacks on noncombatants but not combatants. In such ways, practical public laws of war can come apart from the deep morality of war. I will then be concerned mainly with the deep morality of war. 6 A consequentialist theory of the deep morality of war can admit that public rules of war should be formulated in deontological terms. Such public rules might have better consequences because actual agents would make too many mistakes in applying public rules formulated directly in terms of consequences. Even if so, the deep morality of war still might be consequentialist because the public rules are justified only by their consequences. Thus, theorists who claim only that deontological rules should be publicly accepted and enforced do not deny what is claimed by a consequentialist theory of the deep morality of war. To disagree with consequentialism on that topic, deontologists need to argue that some factor independent of consequences determines which wars are really morally wrong. 7 Some just war theorists might not make any such claim. They might talk only about public rules and not consider deep morality at all. If so, consequentialists have no quarrel with them. That kind of just war theory is simply beside the point here. However, many other just war theorists and deontologists do claim that their rules determine which wars are morally wrong, and they deny that consequences alone determine moral wrongness. Those are the just war theorists whom consequentialists oppose and whom I will discuss here.

5 Jeff(erson) McMahan, ‘The Ethics of Killing in War’, Ethics, 114: 4 (2004), 693–733; also compare his ‘The Law of War and the Morality of War’, in D. Rodin and H. Shue (eds), Just and Unjust Warriors: Moral Equality on the Battlefield (Oxford: Oxford University Press, forthcoming). 6 McMahan’s phrase ‘deep morality’ does not refer to fundamental as opposed to derived principles. Instead, the point is that public rules need to use easily accessible markers in place of obscure factors that really determine what is morally wrong. The depth of deep morality is more like the depth of chemistry (which looks at the deep structure of chemicals instead of their superficial perceivable properties) than like the depth of axioms as opposed to theorems. 7 A bit of terminology might solidify this distinction. We could say that an act is morally wrong when it violates deep morality, not morally permitted when it violates public rules that are actually accepted, and not morally permissible when it violates ideal public rules. Consequentialism about what is morally wrong is then compatible with deontology about what is morally permitted or permissible. I will use this terminology but not depend or insist on it.

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Some critics might deny that deep morality is distinct from public rules, because established public rules of war affect what is morally wrong according to deep morality. Such connections can, however, be granted and explained by consequentialists. If certain rules are publicly accepted and enforced, then anyone who violates those rules should consider how such violations might undermine the system in place. Sometimes the dangers of going against the standing system will be enough to make acts wrong when they would not otherwise have been wrong. Stability and predictability are important. Nonetheless, they are only some considerations among others. When the benefits of going against standing public rules are great enough, then it is not morally wrong to break even the best public rules. This possibility shows that the public rules and the deep morality of war remain distinct topics. Other critics might respond that deep morality does not matter if it is not written into public laws of war. Suppose a consequentialist agrees that governments should sign and enforce treaties that prohibit all preventive wars. Why should anyone then care whether deep morality allows some preventive wars? For one thing, the rationale for the public prohibition might not apply in certain cases. Imagine a government that knows its intelligence is much better than the intelligence of most other countries. This government might favor an exceptionless public rule against all preventive wars, because, if any preventive wars were publicly allowed, then countries with inadequate intelligence would be likely to make mistakes and engage in preventive war when war was not really necessary. Nonetheless, on the basis of its superior intelligence, this country might be justified in believing that it is not morally wrong for it to start a preventive war in a certain situation, despite the risks of violating existing public rules. It appeals to the deep morality of war while endorsing contrary public rules because the reason for endorsing the public rules is to prevent mistakes of a kind that it knows it is not making. Now imagine that this country goes ahead and engages in a preventive war against a potential attacker. Then a third party needs to decide what to do about it. If the attack violated accepted and justified public rules, but this third party still believes that the preventive war was allowed by the deep morality of war, then this third party might justifiably denounce the war (in order to support the public rules) but neither defend the country during the attack nor punish the attacker later. If such third party reactions are allowed but not required by the public rules of war, then deep morality might determine when such reactions are or are not morally wrong. Furthermore, morality is not only for governments. It is also for individuals. If individuals believe that the preventive war violates justified public rules but is nonetheless not morally wrong according to the deep morality of war, then they will be less inclined to condemn politicians and friends who support the war as well as soldiers who return from the war. Governments ought to endorse certain public rules because of the consequences of such endorsements in the practical public international context in which governments operate. Individuals do not normally operate in this public context, so individuals can justifiably form their own moral beliefs without reference to the context that restricts governments.

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Finally, even if theories of deep morality did not affect practice for either governments or individuals, some of us would still want to understand deep morality. We want to know which wars really are morally wrong, not just which wars governments ought to publicly denounce. We also want to know not just which public rules governments ought to endorse but also why governments should endorse those rules instead of others. The answers lie in theories of deep morality. Such theoretical questions need not have clear or direct practical relevance right now in order to be significant.

8.2. CONSEQUENTIALIST MORAL THEORY My consequentialist theory of the deep morality of war is an application of a more general approach to morality. 8 Consequentialism as a general moral theory claims that the moral status of an act depends only on consequences. I favor actconsequentialism which claims that an agent morally ought not to do an act if and only if that act has significantly worse consequences than any available alternative. 9 Consequences are worse when they contain more death, pain, disability (including lack of freedom), and possibly injustice and rights violations, considering everyone equally. This act-consequentialism contrasts with the rule-consequentialism adopted by other contributors to this volume, including David Luban. 10 Ruleconsequentialism is the claim that whether a particular act is morally wrong depends on whether that act violates a general rule that is justified by its own consequences. Rule consequentialism is indirect in the sense that the moral status of one thing (an act) depends on the consequences of a different thing (a rule). In contrast, act consequentialism is direct insofar as it morally judges one thing by the consequences of that thing itself. The first problem for rule utilitarianism is its indirectness. Why should the moral status of one thing depend on the consequences of something else? More specifically, since a rule as an abstract entity cannot have consequences, what are called the consequences of the rule are really consequences of most or 8 On consequentialism in general, see Walter Sinnott-Armstrong, ‘Consequentialism,’ in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2006). http://plato.stanford.edu/entries/ consequentialism/. Consequentialist views of war have also been defended by Richard Brandt, ‘Utilitarianism and the Rules of War’, Philosophy & Public Affairs, 1: 2 (1971), 145–65; and Douglas Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice-Hall, 1989). 9 Some self-styled act-consequentialists claim that rules, character traits, and motives should be assessed in terms of associated acts. That is not my view. As will become evident, I think rules (as well as character traits and motives) should be judged by their consequences, not by the consequences of acts that obey or violate those rules. What I mean by act consequentialism is, thus, what others might call global direct consequentialism—Philip Pettit and Michael Smith, ‘Global Consequentialism’, in B. Hooker, E. Mason, and D. E. Miller (eds), Morality, Rules, and Consequences (Edinburgh: Edinburgh University Press, 2000). 10 David Luban, ‘Preventive War’, Philosophy & Public Affairs, 32: 3 (2004), 207–48.

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all people in a certain group endorsing, teaching, following, and/or enforcing that rule. Rule consequentialism, thus, makes the moral status of one particular act by one particular agent in one particular set of circumstances depend on consequences of separate acts by separate agents in separate circumstances. I see no adequate reason for such indirection. Moreover, any particular act falls under many general rules. A war, for example, might violate a rule against preventive war while also being the only way to avoid violating another rule that requires protecting citizens. I see no non-arbitrary way to determine which rules are the ones whose consequences matter for judging an act that is distinct from all of those rules. Rules are also used in many ways in many contexts. Rules might be used to teach children or to award damages in international courts. Different rules might be justified in different circumstances, often because of varying dangers of misuse. 11 Act consequentialists can recognize this variety and say that it is morally right to use one rule for teaching children and a different rule for international courts. Rule consequentialists, however, need to pick one role for rules as the one and only central role that determines whether a particular act is or is not morally wrong. I see no good reason why one role would be decisive for all moral judgments, so rule consequentialists again cannot avoid arbitrariness. Admittedly, moral theorists must allow some roles for rules, but act consequentialists can do so. Just as they assess acts directly by consequences of those acts, so they assess rules directly by consequences of using those rules. Act consequentialists can (and usually do) also admit that people normally ought to decide what to do not by calculating consequences but, instead, by consulting rules. This move does not turn act consequentialism into rule consequentialism, because act consequentialists can still insist that an act is morally wrong even when its agent used the best rules as a guide or decision procedure if the particular act fails their standard or criterion of the right, because it causes more harm than some alternative. 12

8.3. PROBLEMS FOR CONSEQUENTIALISM Critics propose a slew of counterexamples to act consequentialism. A popular case involves transplanting organs from one healthy person to save five other people. This and most other alleged counterexamples, however, depend on secrecy. It would not make the world better if people knew it was going on. Thus, such

11 Compare Frederick Schauer, Playing by the Rules (Oxford: Clarendon Press, 1991); and Allen Buchanan, ‘Institutionalizing the Just War’, Philosophy & Public Affairs, 34:1 (Winter 2006), 2–38. 12 On the distinction between decision procedures and criteria of the right, see R. E. Bales, ‘ActUtilitarianism: Account of Right-Making Characteristics or Decision-Making Procedures?’, American Philosophical Quarterly, 8 (1971), 257–65.

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counterexamples do not apply to consequentialism about war, since wars are hard to keep secret. 13 Other critics of consequentialism cite commonsense principles that are supposed to be obvious and exceptionless, such as the claim that it is always morally wrong to intentionally kill an innocent person. However, wars are filled with emergencies that create exceptions. In the Vietnam War, the Vietcong sometimes tied explosives to the back of a young child and told the child that a certain group of American soldiers had candy. The child ran to the soldiers to get the candy. The soldiers sometimes had no way to save their lives except to shoot the child before the child got too close. They were killing (or at least harming) the child as a means to save their own and others’ lives, even though they knew the child was totally innocent. Soldiers usually felt horrible about such acts, and their feelings are understandable, but their acts were not morally wrong. Thus, the commonsense principle is not exceptionless after all, and it cannot be used to refute consequentialism about war. More generally, such principles and counterexamples depend on moral intuitions. Moral intuitions in contexts of war are particularly unreliable, because they are notoriously subject to disagreement as well as distortion by partiality, culture, and strong emotions, such as fear. 14 Our moral intuitions evolved to fit situations in everyday life that are very different from war. Hence, any objections that depend on such moral intuitions lose their force when applied to consequentialism about war. 15 Critics might respond that our moral intuitions are reliable and run counter to consequentialism outside war. I would be happy to defend consequentialism in general on another occasion. For now it is enough if consequentialism can be defended as a criterion of what is right in war. The most serious remaining objection to consequentialism about war is epistemological. This objection arises elsewhere, but it is particularly pressing in war, because wars are so unpredictable. 16 It is hard to predict in advance how many people will die on either side of a war. This problem would not be serious if the point were only that we often cannot be sure that a war is justified on consequentialist terms. Everyone should agree that there are many cases where we do not know what is morally right. Rodin thinks the point goes deeper, because consequentialism is ‘useless’ even in ‘clear’ cases. The Allies’ war against Nazi Germany is often presented as the 13

Isolated strikes can be kept secret, at least in some cases, but isolated strikes by themselves do not make a war. 14 See Walter Sinnott-Armstrong, ‘Moral Intuitionism Meets Empirical Psychology,’ in T. Horgan and M. Timmons (eds), Metaethics After Moore (New York: Oxford University Press, 2005). 15 Similarly, the common charge that consequentialism is too demanding because it interferes with personal projects has little or no force in war, because many personal projects have to be sacrificed in wartime. 16 See Walter Sinnott-Armstrong, ‘Gert Contra Consequentialism,’ in W. Sinnott-Armstrong and R. Audi (eds), Rationality, Rules, and Ideals: Critical Essays on Bernard Gert’s Moral Theory (Lanham, MD.: Rowman and Littlefield, 2002).

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clearest example of a justified war. Rodin argues, however, that it is not clear whether even that war minimized bad consequences: The Nazi regime was brutal and aggressive: it systematically murdered approximately 6 million innocent people, and subjected many millions more to a regime of extraordinary moral repugnance. But the war itself cost somewhere in the region of 55 million lives. In addition it made 40 million persons homeless, caused incalculable destruction to the world’s cultural and material wealth, and had the after-effect of initiating the Soviet Union’s brutal half-century dominion over Eastern Europe. This was a horrific price to pay for stopping Nazi Germany. It is certainly not obvious on strict consequentialist grounds it was a price worth paying. 17

The challenge seems simple: The war against the Nazis is clearly morally justified, but it would not be clearly morally justified if consequentialism were correct, so consequentialism is not correct. Consequentialists can respond in several ways. One possibility is to deny that the war against the Nazis is ‘an easy case’. Any act that causes so much death and destruction is at least questionable. Indeed, it was questioned by many opponents of US entry into the war and by many pacifists during World War II. And even if it does seem easy to assess this war, consequentialism might show us that it is not as easy as it seems. The fact that consequentialism raises serious doubts about cases that previously seemed easy might show how illuminating consequentialism is. That is a virtue, not a vice, of consequentialism. 18 Consequentialists can add that, compared to other wars, it is relatively clear that war against the Nazis minimized bad consequences. The Nazis did not merely kill six million Jews. They also killed millions of non-Jews. They had aggressive plans to continue occupying more and more territory. Resistance was inevitable and would lead to more killing. If the Nazis took over Europe, then there would also be loss not only of life but also of freedom and other values. Europeans would have lived in constant fear of arbitrary execution or imprisonment. Their ‘regime of extraordinary moral repugnance’ would have continued for much longer than the war. 19 Moreover, if the Nazis had been allowed to rule Europe without opposition, they could have built up strength and continued their expansion. The larger wave of fascism that accompanied the rise of the Nazis would most likely have spread elsewhere, leading to more wars. When all these bad consequences are considered together, it seems relatively clear (or at least reasonable to conclude) that refusing to fight the Nazis would probably have cost far more than fifty-five million lives over the long run. Consider also the perspective of a single country. The United States, for example, did not have a choice between war and no war. There was going to 17 David Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002), 11; compare his chapter 6 in this volume. 18 I grant Rodin’s methodological point that moral theories should explain not only what is immoral and why but also why certain cases seem obvious and others do not. My point is only that this consideration is only one among others and can be overridden in some cases, including this one. 19 Rodin, War and Self-Defense, 11.

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be a war as soon as Hitler invaded his neighbors. The only options for the United States were (a) a war between the Nazis and the Allies without the United States or (b) a war between the Nazis and the Allies with the United States. Option (a) had a higher probability of Hitler taking over Europe, including Britain, and then continuing to expand the Third Reich. Option (b) reduced that probability even though it increased the chances of US losses. I see little reason to doubt that option (b) has less bad consequences overall than option (a). That comparison is all that is needed for consequentialists to conclude that the United States was morally justified in entering the war. Similar comparisons for other countries could show why each of the Allies was justified in joining up. We also need to ask why the costs of the war against the Nazis were so high. Many historians argue that part of the reason is that the United States took too long to get involved. 20 If so, consequentialists can say that for the United States to join the war in 1941 was better than not joining the war ever or until later, but joining the war in 1941 was also not as good as joining the war sooner. This example might then suggest consequentialist reasons for preventive war, contrary to any blanket deontological prohibition. Of course, we cannot be certain about any of this. It is possible that the war against the Nazis did more harm than good. However, that is unlikely, and we have to live with probabilities here as elsewhere. Consequentialists need to admit that they are often unsure about the right thing to do, especially with regard to war. Is this a problem? No, because we often are and should be unsure whether to enter into war. This admission is not enough, according to Rodin, because it is unclear even what could count as empirical evidence for any conclusion that a war minimizes bad consequences. 21 However, the evidence is clear. Every bit of pain, death, and disability in a war is a bit of evidence for the moral wrongness of that war. Of course, every bit of pain, death, and disability that is prevented by a war is a bit of evidence against the moral wrongness of the war. The problem is not in finding evidence but in weighing all of the evidence together. It is not clear how to do that, but many people seem to focus on one or a small number of reasons that strike them as more likely and important, to discount possibilities that are unlikely or balanced by opposite possibilities, and to remain open to new considerations. The process is hardly mechanical, but it is still based on evidence. Anyway, however they do it, many people do somehow succeed in making decisions by weighing together many and varied long-term consequences (or, at least, by using defeasible heuristics). Military planners do it. So do everyday people who choose careers, get married, or decide to have children. Since we make such choices reasonably in everyday life, it is not clear why we cannot also make such choices reasonably in war. Admittedly, as Rodin says, ‘Consequentialism is frequently a deeply disappointing guide.’ 22 Still, this does not make consequentialism ‘useless’. Even if we could 20 21

See chapter 2 by Trachtenberg in this volume. See Chapter 6 by Rodin in this volume, p. 153.

22

Rodin, War and Self-Defense, 10.

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not weigh the consequences of any war as costly as the war against the Nazis, we still might be justified in believing that other less costly wars are not morally wrong. And even if we were never justified in believing that any war has good consequences overall, we still might be justified in believing that certain wars are morally wrong. We can know, for example, that it was morally wrong for Nazi Germany to invade Poland. Such negative judgments provide guidance insofar as they tell us what not to do. These suppositions might lead to the conclusion that we are never justified in believing that any war is morally right, but we can still be justified in believing that some wars are morally wrong. If so, consequentialism leads to an epistemic variation on pacifism. That conclusion is not obviously implausible, if the suppositions are granted. Still, I am not as pessimistic about our epistemic abilities as Rodin is. It strikes me as reasonable to believe that the war against the Nazis prevented more harm than it caused. I admit uncertainty, but that need not force me to give up my belief or even my meta-belief that my belief is reasonable and justified. Admittedly, consequentialists still need some way to make decisions in the face of uncertainty. Mill suggests one possibility when he says that utilitarians should follow common rules of morality unless they have especially strong arguments. 23 Another possibility would deploy some technical rule for decision-making under uncertainty, such as a maximin principle, 24 a disaster avoidance principle, 25 a moral certainty principle, 26 or Lockhart’s theory. 27 Possibilities abound. It is not clear to me which of these options is most promising. I wish I could be more definitive, but I can only admit that I, along with all other moral philosophers (deontologists as well as consequentialists), need to develop better ways of dealing with the crucial and pervasive issue of uncertainty. Luckily, since my act consequentialism provides a criterion of the right instead of a decision procedure, I can set this issue of uncertainty aside for now. Other consequentialists might try to avoid problems of uncertainty by claiming that moral wrongness depends not on actual consequences but, instead, on foreseen or reasonably foreseeable consequences. If so, consequentialists do not have to argue that the war against the Nazis actually did minimize bad consequences. All they have to claim is that the Allies believed or had reason to believe that this war would prevent more harm than it would cause. If they could not have expected, for example, the Soviet domination of Eastern Europe after World War II, then those bad consequences could not show that the war was morally wrong on their view. However, consequentialists who count only expected or expectable consequences run into problems of their own. Such consequentialists have trouble 23

John Stuart Mill, Utilitarianism (1861). John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 152–6. 25 Gregory Kavka, Moral Paradoxes of Nuclear Deterrence (New York: Cambridge University Press, 1987), 65–70; and Jeff(erson) McMahan, ‘Nuclear Deterrence and Future Generations,’ in Avner Cohen and Stephen Lee (eds), Nuclear Weapons and the Future of Humanity (Totowa, NJ: Rowman and Allanheld, 1986). 26 Robert Goodin, ‘Nuclear Disarmament as a Moral Certainty’, Ethics, 95: 3 (1985), 267–84. 27 Ted Lockhart, Moral Uncertainty and its Consequences (New York: Oxford University Press, 2000). 24

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answering, ‘Foreseen or foreseeable by whom?’ If an observer foresees horrific consequences that the agent cannot foresee, the observer should not say that the agent ought to do the act with horrific consequences. 28 Moreover, in a collective action, such as a war, different people would be able to foresee different consequences. Hence, if moral wrongness depended on foreseeable consequences, it would make no sense to ask whether the war was morally wrong without qualification. Finally, it is hard to understand why the true moral status of an act would depend on its agent’s false beliefs, even if reasonable. When an act has overall bad consequences that its agent could not have reasonably foreseen, the agent should not be blamed or criticized morally as an agent, but the act itself can still be morally wrong. Every moral theory needs to distinguish agents and acts, and the most natural way to recognize this distinction is to let foreseeable consequences determine whether the agent is blameworthy and actual consequences determine whether the act ought to be done. For such reasons, I am inclined to think that the moral rightness of wars depends on their actual consequences, including counterfactual consequences or what have happened if a different act had been actual. However, if I had to give up that position and count foreseeable consequences instead, I would not be terribly upset. 29 What is important is that the moral status of a war depends only on consequences of that war rather than on any rule or factor that is independent of consequences.

8.4. JUST WAR THEORY Despite its virtues, consequentialism is not as popular as its main rival, just war theory. It is difficult to discuss just war theory as a whole because it contains so many parts and comes in so many versions. As Rodin says, ‘The Just War Theory is, in reality, many theories.’ 30 Some just war theories propose only public rules of war. These versions might seem to conflict with consequentialism, because their public rules refer to deontological factors other than consequences. However, as I said, consequentialists can accept such public rules and even justify them by their consequences. Hence, just war theories that are only about public rules do not conflict with consequentialism. I am interested in versions of just war theory that challenge consequentialism. Thus, although just war theories about public rules might be correct and important, they are simply not my topic here. 28

Sinnott-Armstrong, ‘Gert Contra Consequentialism’, 152–3. Another possibility is to stipulate that actual consequences determine whether an act is morally good, foreseeable consequences determine whether an act morally ought to be done, and consequences of applying sanctions determine whether an act is morally required. Such stipulations do not capture all common usage, but they might mark the distinctions needed to locate an act in moral space. 30 Rodin, War and Self-Defense, 103. 29

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Just war theories conflict with consequentialism only when they make claims about the deep morality of war. Just war theories of deep morality specify conditions that must be met for a war to be not merely just but morally justified overall. These conditions are normally divided into three parts: jus ad bellum, jus in bello, and jus post bellum. 31 What concerns us here is jus ad bellum—when it is or is not morally wrong to go to war. Within that subdivision, the condition that is most relevant to preventive war is just cause.

8.4.1. Just Cause The condition of just cause says that it is morally wrong for anyone to wage war without a just cause. But that cannot be all there is to it. Even consequentialists grant that wars need some just cause in order to be morally justified, since wars have bad consequences, so they cannot make the world better overall unless they have compensating benefits. Consequentialists and just war theorists also agree that the just cause must be important enough to overcome the strong presumption against war. The conflict between consequentialism and just war theory arises only when just war theorists specify exactly which causes can justify war. Which causes are just causes? Wars have been fought for many reasons: defense of self or allies or others against external attack, enforcement of international law or punishment for past aggression, to stop internal atrocities or defend human rights, to spread a religion or form of government, for economic gain or glory, out of hatred of the enemy or love of battle, and so on. Just war theorists need to specify which of these candidates are just causes and, hence, adequate to justify war given the other conditions in their theory. They also need to say why these candidates are just causes and why the others are not. This task will not be easy. Many of these candidates are controversial. Emotions, partiality, and culture are likely to distort intuitions. And just war theorists cannot specify just causes by reference to consequences without, in effect, giving in to consequentialism. So it is not clear how just war theorists can justify their claims. Some just war theorists might think that they can avoid these problems by limiting their claims to the clearest case: self-defense. 32 However, even if everyone agreed that self-defense is sufficient to justify war given other conditions, its sufficiency would not show that it is necessary. Other causes might also be sufficient. Hence, just war theorists who talk only about self-defense cannot argue that any war lacks a just cause or that consequentialism justifies wars without just causes. To reach such a negative conclusion, just war theorists need to explain why selfdefense is the only just cause and nothing else on the above list is a just cause. It is hard to imagine any good argument for that claim. Some just war theorists (such as Uniacke, see ch. 3 in this volume) seem to suggest an argument like this: Until you have been wronged, you have no good 31

Brian Orend, ‘War’, in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2003). Neta Crawford, ‘The Justice of Preemption and Preventive War Doctrines’, in Mark Evans (ed.), Just War Theory Revisited (Edinburgh: University of Edinburgh Press, 2005). 32

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enough reason to use force. However, the reason for a preventive war is to prevent harmful attacks. That sure looks like a good reason. It simply begs the question to assume that this good reason is not good enough, at least when the prevented harms are much greater than the harms inflicted by the preventive war. Just war theorists, including Crawford, might respond that too many countries will start wars if we tell them that wars might sometimes be permitted for humanitarian purposes, to enforce international law, or to spread democracy. This is far from obvious if other conditions limit such wars to clear and extreme cases, such as the rare cases where humanitarian wars meet consequentialist criteria. Moreover, even if publicly permitting such wars would lead to too much war, that is a reason not to build such permission into public rules of war. It shows nothing about the deep morality of war or about moral wrongness. That leaves no good reason to assume that self-defense is the only just cause that is adequate to justify war given other conditions. In addition, the condition of self-defense needs to be interpreted carefully. Crawford, for example, claims that: ‘A conception of the self that justifies legitimate preemption in self-defense must be narrowly confined to immediate risks to life and health within borders or to the life and health of citizens abroad.’ 33 A broader definition of the self might count war as self-defense when it is waged for the sake of ‘economic well-being’ and ‘access to key markets and strategic resources.’ 34 The Bush administration takes such a broad view of self-defense for the United States. I grant that increasing the economic well-being of already prosperous nations, including the United States, is not true self-defense and could not justify war in any realistic scenario. However, if ‘economic well-being’ includes maintaining minimal economies for severely deprived people, then protecting economic wellbeing might count as self-defense. Perhaps such minimal economic well-being fits under ‘life and health’, but that just shows how economic well-being sometimes might be important enough to justify war. It is also not clear why war could never be justified to protect ‘strategic resources.’ Strategic positions are ones that give an advantage, but resources are usually called strategic only when they are needed to be able to defend life and freedom. If we could not start a war to defend resources that are strategic in this narrower sense, then opponents who want to invade our country could cut off our strategic resources so as to make us unable to defend ourselves by the time they invaded. By limiting self-defense to ‘life and health’, Crawford also implies that anticipatory war is never justified to protect our freedom at home or abroad. However, if it were morally wrong to start a war to defend our freedom, then it would be

33 Neta Crawford, ‘The Slippery Slope to Preventive War’, Ethics and International Affairs, 17: 1 (2003), 30–6. 34 See ch. 4 by Crawford in this volume, quoting US government documents, and compare Crawford, ‘The Justice of Preemption and Preventive War Doctrines’ 96.

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morally wrong to stop invaders who promised to keep us alive and healthy while taking over our government. My most basic disagreement with Crawford and just war theory concerns method. Crawford announces that certain general kinds of values (life and health) are adequate and others (such as economic well-being) are not. However, particular instances of such general kinds vary along continua and are affected by circumstances. Freedom, health, and economic well-being come in endless degrees. The risk of attack can also vary from no chance to certainty. Whether a war is morally wrong depends on exactly where it falls along such continua. Most people’s intuitions are not fine-grained enough for such complex questions. Hence, I see no reasonable alternative to the consequentialist position that whether a war is morally wrong depends on balance of probabilities of various values and disvalues among its consequences.

8.4.2. Imminence We still need to ask whether prevention of future aggression is a just cause in the absence of any actual aggression at present. The traditional answer is that the future aggression must be imminent. This is the imminence condition. If the threat is imminent, the war is called preemptive. If it is not imminent, the war is called preventive. Traditional just war theory then forbids all preventive wars but not all preemptive wars. A classic example of a preemptive war is Israel’s Six Day War of 1967. Egypt was building up forces on its border with Israel, so it was credible that they would attack Israel very soon. Israel beat them to the punch by bombing Egyptian airfields while their planes were on the ground. Israel’s attack was preemptive rather than preventive, because Egypt’s attack was imminent. In contrast, a classic example of a preventive strike occurred when Israel bombed Iraq’s Osirak nuclear reactor in 1981. The threatened attack was not imminent, because it would have been years before the reactor produced material for nuclear weapons. 35 When does an attack count as imminent? Some just war theorists specify a time period. Crawford, for example, answers that an attack is imminent when and only when it ‘can be made manifest within hours or weeks.’ 36 How many hours or weeks? Presumably, ‘hours or weeks’ must be shorter than a month. Crawford’s formulation then suggests that Israel’s bombing of Egyptian airfields at the start of the Six Day War met the condition of imminence, so it was not morally wrong, if the other conditions were met; but Israel’s bombing of the Osirak reactor failed the condition of imminence, so it was morally wrong. 35 As Luban points out, this quick attack was not a war—David Luban, ‘Preventive War’, Philosophy & Public Affairs, 32: 3 (2004), 207–48. Still, it was an act of war, so it should be subject to the same conditions within just war theory—cf. Crawford, ‘The Justice of Preemption and Preventive War Doctrines’, 4–5; and Buchanan’s Missile Attack example, ch. 5 in this volume, 127. 36 See ch. 4 by Crawford in this volume, 119.

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This condition makes moral wrongness depend on timing, but why does time matter? Several answers are common. First, by waiting until Egypt’s attack was imminent, Israel gave Egypt an opportunity to forswear aggression. It might seem unfair to remove that chance to improve. Second, by waiting until Egypt’s attack was imminent, Israel also waited until the probability of attack was high. Countries sometimes threaten aggression when they do not really mean it or at least will not really do it when push comes to shove. As time goes by, non-aggressive possibilities disappear and the preemptor gains more and stronger evidence (which increases the epistemic probability) of the feared attack. For such reasons, time is correlated with probability: When the attack is imminent, the probability of attack is usually higher than before it became imminent. Consequentialists agree that probability can affect what is morally wrong, but usually they deny that time itself affects what is morally wrong. A test case would occur if time did not change probability (or did not change it enough to make a difference). Imagine that Israel had attacked Egypt in the same way as it did in 1967, but a month earlier. In this imaginary scenario, Israelis were just as certain about the impending attack by Egypt, and waiting a few weeks until the attack was imminent would not have made Israel more certain. Nevertheless, waiting would have made Israel’s defense less likely to succeed and more costly in both Israeli and Egyptian lives. The imminence condition implies that this earlier anticipatory attack would have been morally wrong, because the threatened attack was not imminent. I find this position hard to believe. If the level of certainty is high enough a week in advance, the same probability should be high enough a month in advance. If waiting will not decrease the probability of aggression and will increase the costs to both sides (in innocent Israeli as well as Egyptian lives), then I see no reason to wait. Time itself provides no reason. Temporal imminence is not necessary for guilt, since Egypt was conspiring to attack Israel more than a month in advance. 37 It might seem unfair not to grant Egypt a last chance to mend its ways, but Egypt would have had many such opportunities long before Israel’s attack, even if that attack had come a month earlier. If every last opportunity had to be provided, then Israel would not have been justified in bombing even one minute before the Egyptian planes took off (or entered Israeli airspace). Even just war theorists do not believe that. Hence, temporal imminence cannot really be necessary for an anticipatory war to avoid being morally wrong. This point also applies to Israel’s attack on the Osirak reactor. Israel argued that, if they had waited, the reactor would probably have been used to make nuclear weapons. If they had waited to bomb it when it was active, then very many people in Iraq would have been killed by the explosion and nuclear fallout, whereas only a few people were killed when they bombed the reactor before it was active. The same reasoning might also apply to Bush’s attack on Iraq. Imagine that Bush had allowed Saddam Hussein to develop more chemical and biological weapons 37

See ch. 7 by Luban in this volume, 230.

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and then to begin loading them into missiles while expressing the intention to shoot those missiles at the United States or our allies, such as Israel. If we had bombed their missiles at that later time, then the chemical and biological agents might have spread widely throughout Iraq and neighboring countries. This would have caused even more devastation to innocent civilians than the current war. I am not claiming and do not believe that these facts are accurate or that this scenario motivated Bush. My point is only that certain types of weapons—nuclear as well as biological and chemical—change the equation (cf. Buchanan’s Lethal Virus example in chapter 5 in this volume). When threatened with weapons of these sorts, waiting can sometimes be much more dangerous for innocent people on both sides. I shall argue later that this affects what our public policies should be. For now the point is that it also affects whether preventive war can be morally justified. My conclusion is that countries ought to wait when it is not too dangerous to wait, but sometimes waiting is too dangerous, and then preventive war might not be morally wrong. If so, time in itself makes no difference. What really matter are the likely benefits and costs of acting at one time as opposed to another, just as consequentialism suggests. In most real cases, the time frame will not be clear. The Israeli cases are relatively clear because Egypt was amassing its forces right on the border, and they could not afford to keep them mobilized for long. Similarly, it was also clear that the Osirak reactor would not be used for a long time, since it was still under construction. In most real cases, however, the time frame is less determinate. Suppose that Saddam Hussein really had been manufacturing chemical and biological weapons of mass destruction. How long would it be before he used them? Nobody knows, not even Saddam Hussein himself. It would depend on intervening events, as well as his mood. We might be able to say that it was more likely than not that he would not use the weapons in a month but would use the weapons in some way within, say, ten years. More precision than that could not be justified. Our best basis for decision is only speculation about ranges of probabilities within an indeterminate time. That leaves little, if any, role for a requirement of imminence. Is there a credible fear of imminent attack if our best guess is that there is a 0–20 percent chance of some kind of attack within one week, a 10–40 percent chance of some kind of attack within one month, a 20–60 percent chance of some kind of attack within one year, and so on? In realistic situations, imminence is usually indeterminate, so it should not be part of the deep morality of war. 38 Of course, defenders of the imminence requirement can respond by picking a time, like Crawford’s ‘hours or weeks’. The problem is that any specific answer will be arbitrary. I see no reasonable way to draw a line except by reference to consequences in particular circumstances. What looks like an anti-consequentialist condition must get transformed into a consequentialist condition in order to avoid arbitrariness and implausibility. 38 My point about imminence resembles what McMahan says about combatants in ‘The Ethics of Killing in War’. We need simple notions like imminence and combatant in public rules of war, because they are easy to apply, but they are too imprecise for the deep morality of war.

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Preventive War, What Is It Good For? 8.5. A CONSEQUENTIALIST VIEW OF PREVENTIVE WAR

To determine whether preventive war is morally justified, just war theorists ask whether prevention of nonimminent aggression is a just cause. The answer is far from clear, partly because the question lumps together so many different circumstances. In contrast, consequentialism enables a more nuanced and insightful view of preventive war. Because of its sensitivity to circumstances, consequentialism clearly implies that it is at least logically and physically possible for some preventive war to be morally justified. Examples include Buchanan’s Lethal Virus and Missile Attack cases (see pp. 127–8 in this volume). A general rule against preventive war cannot hold in all possible cases if the moral wrongness of such wars depends on their consequences and the consequences of the available alternatives in the particular circumstances. Preventive war still might never be justified in any actual case, according to consequentialism. However, we already saw a plausible example: Israel’s preventive bombing of the Osirak reactor. Assuming that international negotiation and pressure would probably have failed, if Israel had waited for the reactor to start up, then they probably would have had to attack either an active reactor or a plant for building nuclear bombs. Either alternative would be likely to have spread nuclear radiation over a large area and harmed many more innocent people than the actual preventive bombing. On these facts, then, consequentialism implies that this attack was morally justified. The United Nations Security Council condemned Israel for bombing the Osirak reactor. However, that condemnation does not reveal any consensus that the bombing was immoral. It does not even show that the Security Council members shared that belief. They might have thought it useful to make such a public condemnation even though Israel’s attack was justified. After all, the Security Council did nothing beyond making a statement. If they had really believed that the attack was morally wrong, then they should have done more than talk. Anyway, consequentialists can explain how public condemnation of Israel could be morally justified by the consequences of that public speech act, even if Israel’s bombing was not morally wrong because of the beneficial consequences of that separate action. I know of no actual case where a preventive war seems justified as defense against conventional weapons. An early preventive campaign against Hitler would have been a likely candidate, but Hitler had already attacked and was occupying several countries, so an early attack (say, in 1938) could have been justified as law enforcement or on humanitarian grounds rather than as prevention. That leaves no justified preventive war against conventional weapons. Why? Maybe because the cost of waiting until an attack is imminent is never actually too high with conventional weapons. It is possible that an early attack would prevent scattering of enemy weapons that would make a later attack less effective and more costly to both sides, and that these costs would outweigh the benefits of waiting; but this seems unlikely. The absence of actual cases supports this guess.

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What about Bush’s attack on Iraq? According to consequentialism, Bush’s attack was morally wrong if any available alternative would have had better consequences overall for the world. The crucial question is not whether the attack was better than doing nothing at all to reduce terrorism. The critical question, instead, is whether any available alternative would have been better. One multipronged non-military alternative has been proposed and supported forcefully by Bart Gruzalski: Breaking up terrorist cells, arresting terrorists, putting terrorists on trial in a world court, negotiating with the Taliban, no longer propping up tyrannical Arab regimes, pulling U.S. troops out of Saudi Arabia, and even-handedly dealing with the Palestinian–Israeli conflict would have been a successful strategy both to protect Americans and to stop the spread of anti-American insurgents. 39

More particularly, Instead of invading Iraq, one alternative approach would have let Hans Blitz and the U.N. inspectors finish their job. . . . In addition . . . , the U.S. could have insisted on overflights with high altitude surveillance planes to check for weapons and military activity. . . . Since there was no military threat from Iraq [under such circumstances], the U.S. and the rest of the world could have lifted sanctions against Iraq and brought Iraq into the world trading community. . . . Instead of turning Iraq into a recruitment poster for al-Qaeda, the nonmilitary approach would foreseeably undermine the support for terrorism in the Islamic world. 40

If this alternative would have been better overall than Bush’s attack on Iraq, as I believe, then Bush’s war was morally wrong according to consequentialism. Bush’s defenders might respond that Gruzalski’s proposal would not have reduced terrorism. After all, many members and leaders of al-Qaeda have been rounded up since the war began. That, however, is no reason to assume that they would not have been rounded up without the war. Even before the attack on Afghanistan, many countries were already taking significant steps to break up terrorist cells and arrest terrorists. 41 These steps would be likely to have produced many arrests of al-Qaeda members without any attack on Iraq. Indeed, the US attack on Iraq (as well as treatment of terrorists in Guantanamo) squandered good will after September 11, led to less international cooperation, and thereby hurt the previous efforts to round up terrorists. The attack on Iraq also increased hatred of the United States among Arabs and seemed to confirm Bin Laden’s claim that he is defending Islam against US aggression. For these reasons, instead of decreasing terrorism, Bush’s Iraq War seems likely to increase terrorism against the United States and its allies in the long run. This point applies even if one appeals to a US right to self-defense or if one gives up impartiality and appeals to interests of the United States in particular. Neither 39 Bart Gruzalski, ‘Some Implications of Utilitarianism for Practical Ethics: The Case Against the Military Response to Terrorism’, in Henry West (ed.), Blackwell’s Guide to Mill’s Utilitarianism (Oxford: Blackwell, 2005), pp. 249–69. 40 Ibid. 41 Ibid.

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of these justifications works if Gruzalski and I are correct, because Bush’s Iraq War does not help to defend the United States or serve US interests. This point becomes even clearer when we add the costs of the war on the US economy and on US civil rights. Bush still might justify his Iraq attack as the only way to maintain US preeminence. Preeminence by itself is never enough for a consequentialist. Still, if US preeminence is the best means to achieve or maintain peace, then the best means to United States preeminence might be justified. However, many people (and I among them) doubt that US preeminence is the best means to peace. 42 Then Bush’s attack cannot be justified as a means to US preeminence. Finally, Bush might defend his war as a way to bring to justice those responsible for the terrorist attacks on September 11. Then the war was not preventive. It was also not justified. Al-Qaeda had already been attacked in Afghanistan, and there were no clear connections between al-Qaeda and Iraq (or at least none has been found yet). Other proposed justifications, such as to spread democracy or to enforce international law, also fail, because there were better ways to achieve those goals, as Gruzalski argues. My conclusion is that Bush’s war in Iraq is morally wrong on consequentialist grounds. Of course, I am not certain. However, given such uncertainty, there is at least no adequate reason to believe that Bush’s war was morally justified. 43 This lack of any adequate reason plus the presumption against war based on long and painful experience together support my conclusion that it was morally wrong to go to war in Iraq. What about Bush’s general policy of preventive war? Bush announced that the United States will engage in preventive war whenever it sees that step as necessary to defend itself. I doubt that such an unfettered policy is defensible. Politicians in the heat of the moment are too likely to err. 44 However, as I argued, some preventive wars might not be morally wrong, although the only realistic cases are preventive wars against nuclear, chemical, biological, and possibly other unconventional threats. I also agree with Luban (2004) that the only realistic examples are rogue states. If that is correct, then we might benefit by acknowledging it. The United States could publicly renounce any preventive war against conventional threats but still reserve the right to use preventive attacks against threats by rogue states with unconventional WMD, though only when there is strong enough evidence that no other option will be less costly overall. This policy could even be written into some enforceable international law. It would be very tricky to specify details, such as which states are rogue states, which weapons are conventional, when destruction is mass destruction, and when the evidence is strong enough. But partial solutions can be developed. The problem of inadequate evidence, for example, could be reduced (though not removed) 42

Compare Luban, ‘Preventive War’, 243–8. The way in which the war was conducted was also morally wrong in many ways. The initial strategy of Shock and Awe, e.g. violated just war theory and, more importantly, produced unnecessary bad effects. 44 For more detail, see Luban, ‘Preventive War’, ch. 7. 43

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if countries agreed not to engage in preventive war unless an impartial body agrees (unanimously or by a supermajority) that the evidence that the attacked country both has weapons of mass destruction and also is a rogue state are strong enough to justify preventive war. Reluctance to invoke the permission and engage in preventive war could be induced by agreeing to impose penalties (such as forced reparations) on countries that engage in preventive wars on the basis of evidence that is later discovered to be faulty, such as when it turns out that there were no weapons of mass destruction. 45 Countries that want to start a preventive war will then have to decide whether they really believe that their evidence is strong enough for them to take the chance that they will be forced to pay reparations later. This plan is admittedly idealistic, because many countries will be unwilling to accept or enforce such international laws. There are also bound to be significant disagreements about which policy would be best if adopted. Still, if some such policy could be worked out (and written into international law, applied by impartial courts, and enforced by some group of nations), then it might help to slow the spread of unconventional WMD and also deter the acts that get countries classified as rogue states. This kind of policy might then satisfy some of the Bush administration’s legitimate concerns without being as dangerous as the current Bush policy. 46 45

Compare Buchanan, ‘Institutionalizing the Just War’, chapter 5 in this volume. For helpful discussion and comments on drafts, I thank Sue Uniacke, David Rodin, Henry Shue, Frances Kamm, Jeff McMahan, Bart Gruzalski, Peter Singer, Bernard Gert, Julia Driver, Nir Eyal, Anne Eaton, John Oberdick, Philip Pettit, Nan Keohane, Kim Scheppele, Steve Macedo, and others in audiences at the University of Oxford, the International Society of Utilitarian Studies, and the Princeton Center for Human Values. I would also like to thank the Oxford Leverhulme Program on the Changing Character of War and the Princeton University Center for Human Values for financial support while writing this chapter. 46

9 What Would a Justified Preventive Military Attack Look Like? Henry Shue

The preventive war launched against Iraq in March 2003 has been such a harrowing catastrophe for all concerned, except executives of reconstruction contractors with political connections to the Bush/Cheney administration, that one might suspect that the notion of preventive war had been fatally undermined by the chilling sight of its tragic embodiment in practice. As Marc Trachtenberg has demonstrated in chapter 2, however, US foreign policy has long been influenced by the appeal of the idea of preventive war. The embarrassment to the idea of preventive war caused by the bungled Bush/Cheney implementation of it may discourage further attempts in the immediate future, but the idea’s allure is strong and calculations in its terms are deeply embedded in at least the American view of how to deal with the rest of the world. For better or for worse, the idea will not go away because of one disastrous failure in execution. And of course an incompetent implementation of an idea does not show that the idea itself is misguided. What if a preventive military action were justified and it were conducted intelligently? First, we need to know what a justified preventive military action would look like.

9.1. ‘TWINBORN’ JUSTIFICATION AND LIMITATION: WHAT JUSTIFIES, LIMITS So that we have a designation that does not already carry any moral baggage, let us call a military action that is neither a defensive response against an actual attack nor a preemption of an imminent threat an ‘early military attack’, or EMA. EMAs include what are ordinarily called preventive strikes and preventive wars. Our question, then, is: what conditions would have to be satisfied in order for an EMA to be justified? What are the necessary conditions for a justified EMA, if there are any justified EMAs? Much discussion related to preventive war and preventive strikes to date has concerned timing, or the question: when? In what conditions could an EMA be justified? If the threat does not need to be imminent, as it does for a Websterian

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preemption, when can preventive military action be taken? 1 These are important issues, and I return to them later. But first I want to consider a less discussed issue: what? Assuming that the appropriate circumstances for military action hold, exactly which kind of military action can be taken? One necessary condition of a justified EMA, then, would concern this aspect of permissible means: what could be done in response to whatever danger had been specified as the grounds for action. It may be justified somehow to neutralize or remove the danger, but the limits on how this could be done would also need to be spelled out fully in any adequate account of this proposed first necessary condition. When the United States, with the assistance of the UK, invaded Iraq in 2003, they overthrew the government and are now occupying the country until a date of their own choosing, while forcibly restructuring the Iraqi political system. Suppose the official justification for the invasion had not been false and the Iraqi government had in fact possessed readily usable WMDs. 2 Would this have provided adequate grounds for long-term military occupation and the imposition of new political institutions? The fundamental principle relevant here, I would suggest, is: what justifies, limits as well. 3 In Daniel Webster’s words, ‘The act justified by the necessity . . . must be limited by that necessity.’ 4 The outside limits on what it is justified to do, by use of military force, flow from the nature of the danger that the EMA is intended to eliminate. Assume the danger involves WMD. At one extreme, the attacking forces might merely have located and destroyed the WMD in question. If adequate and accurate US or British intelligence about Iraq in 2003 had in fact been available, the locations of the WMD (if they had in fact existed) could have been pinpointed, and the WMD destroyed. Conceivably, this could have been accomplished entirely by air strikes without any ‘boots on the ground’ and possibly without any 1

For the concept of Websterian preemption, see the Introduction. For the politically motivated concoction of the rationale actually furnished to the public, see Mark Danner, The Secret Way to War: The Downing Street Memo and the Iraq War’s Buried History (New York: New York Review Books, 2006). 3 ‘The justification of participation in conflict at the same time severely limited war’s conduct. What justified also limited!’—Paul Ramsey, The Just War: Force and Political Responsibility (Savage, MD: Rowman & Littlefield, 1983; original ed., 1968), 143. Ramsey also writes of ‘twin-born justification and limitation’. Patricia Owens has shown that the conviction that justification constitutes limitation is also central to the political theory of war in Arendt—see her Between War and Politics: International Relations and the Thought of Hannah Arendt (Oxford: Oxford University Press, 2007). 4 US Secretary of State Daniel Webster, Letter to British Ambassador Henry S. Fox, April 24, 1841, in The Papers of Daniel Webster: Diplomatic Papers, vol. 1, 1841–43, ed. by Kenneth E. Shewmaker (University Press of New England, 1983), 62; and Daniel Webster, ‘From a Letter of American Secretary of State Daniel Webster to British Ambassador Henry Fox, dated 24 April, 1841,’ British and Foreign State Papers, 1840–1841, vol. XXIX (London: James Ridgway and Sons, 1857), 1137. A more readily available source is Gregory M. Reichberg, Henrik Syse, and Endre Begby (eds), The Ethics of War: Classic and Contemporary Readings (Oxford and Malden, MA: Blackwell, 2006), 564. The phrase I have omitted is ‘of self-defense’; I take Webster to have been making the broader logical point extending beyond self-defense in particular that Ramsey later expressed beautifully in the image of justification and limitation being ‘twin-born.’ 2

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casualties among the attackers. More realistically, the sites themselves would probably have needed to be seized and searched, which would have led to casualties among both defenders and attackers. However, if none of the stockpiles of WMD were in cities, it might not have been necessary to attack or occupy any cities, avoiding the tens of thousands of civilian casualties that have in fact been inflicted in Iraq, as well as the thousands of casualties among attacking and defending combatants. 5 What if it was known that Saddam Hussein was the kind of incorrigible dictator who would never cease the attempt to reassemble any stockpiles that were destroyed whenever he had the chance? Would that not mean that if he did not agree to go into exile, or otherwise to put himself out of the WMD business, but instead fled into the countryside, as he in fact did, the invading forces would be justified in occupying the country and searching him out, as they in fact did? Plainly the answer is: no. Of course it would not be sensible merely to destroy existing stocks of WMDs and then to depart after doing nothing to prevent their recreation, especially when it was readily predictable that persistent attempts would be made to regain WMDs. Yet we know that in fact Saddam Hussein’s original stocks of WMDs in 1991 were destroyed by a system of UN inspections, backed by militarily enforced sanctions, and that those same inspections did in fact prevent him from reconstituting the stocks prior to 2003. It was because of the effective UN inspection system that he had no stocks when the Americans and British attacked the country. If the dictator had had stocks that needed to be destroyed, then it certainly would have been reasonable also to take measures to prevent their reconstitution. But that could have been accomplished by reimposing a system of UN inspections as effective as the system that had in fact been operating until it was forced out by the impending Anglo-American invasion. 6 The hundreds of thousands of Iraqi civilians, and thousands of invading and defending troops, who have died 5

Compare the ‘Missile Attack Cases’ in ch. 5 by Allen Buchanan. The actual sanctions, imposed in 1991 and enforced by the Clinton Administration, were excessively and extremely harsh—see Joy Gordon, A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions (Cambridge, MA: Harvard University Press, forthcoming); Joy Gordon, ‘Accountability and Global Governance: The Case of Iraq’, Ethics & International Affairs, vol. 20, no. 1 (2006), 79–98; Joy Gordon, ‘Cool War: Economic Sanctions as a Weapon of Mass Destruction’, Harper’s Magazine (November 2002), 43–9; Joy Gordon, ‘When Intent Makes All the Difference in the World: Economic Sanctions on Iraq and the Accusation of Genocide’, Yale Human Rights & Development Law Journal, vol. 5 (2002), 57–84; Paul Conlon, United Nations Sanctions Management: A Case Study of the Iraq Sanctions Committee, 1990–1994 (Ardsley, NY: Transnational Publishers, 2000); Sarah Graham-Brown, Sanctioning Saddam: The Politics of Intervention in Iraq (London: I. B. Tauris, 1999); Thomas G. Weiss, David Cortright, George A. Lopez, and Larry Minear (eds), Political Gain and Civilian Pain (Rowman & Littlefield, 1997); Richard Haas, ‘Sanctioning Madness’, Foreign Affairs, 76: 6 (November/December 1997), 74–85; John Mueller and Karl Mueller, ‘The Methodology of Mass Destruction: Assessing Threats in the New World Order’, Journal of Strategic Studies, 23:1 (March 2000), 163–87; and John Mueller and Karl Mueller, ‘Sanctions of Mass Destruction’, Foreign Affairs, 78: 3 (May/June 1999), 43–53 (showing that US sanctions against Iraq resulted in more casualties than all weapons of mass destruction combined). An equally effective system of inspections could have been enforced by a far less cruel system of sanctions. 6

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during the invasion and occupation have all died needlessly. The invasion and occupation were a wildly excessive overreaction, if the purpose were to prevent the existence of stockpiles of WMDs in Iraq. If the choice of launching a war of this magnitude were to be justified, it could only be justified by some entirely different purposes. 7 It would be rare for ‘regime change’, that is overthrowing sovereign states in other peoples’ countries, to be justified for the purpose of eliminating WMDs. One cannot simply say: ‘Our rationale for being here was the elimination of WMDs, but, while we are here, we will just take the occasion to build a different kind of nation.’ This is a perfectly general logical point, having nothing specifically to do with preemption or preventive war, or even with war in particular: the ground that justifies what is being done justifies only whatever it justifies. Actions that go beyond what is justified are simply unjustified by that ground. If the ground for action is the elimination of WMDs, the most that is justified is what it actually takes to eliminate WMDs. Other actions that may seem like a good idea—‘let’s re-make the society while we are here’—need their own justifications. The war started in Iraq in 2003 is a perfect example of a first way to fail to satisfy this first necessary condition, even granted the implausible assumption that Iraq contained WMDs constituting a potentially devastating danger. It is of course possible to argue about the facts of the Iraqi case as I understand them. For present purposes, my understanding is only illustrative; readers who do not believe it to represent the facts can treat it as a hypothetical case. The fundamental point here is: what justifies, limits. It justifies only what it justifies. If the justification of military action were the elimination of stocks of WMDs and the prevention of their reconstitution, then one would be justified in adopting reasonable means to that end. But only reasonable means, and only means to the justifying end, not to a smorgasbord of other ends. Further, if one effective means to that end were an inspection system that does not lead to the death of many Iraqis, and another means, not a whit more effective, is a war that leads to hundreds of thousands of deaths (and all kinds of other long-term problems, including a major surge in terrorist activity), the selection of war as the policy of choice is utterly misguided. An EMA, like any other military operation, is justified in its use of violence only if no other means less destructive of human life would accomplish the same purpose equally effectively—this is an implication of the universal requirement of proportionality. Especially because any EMA would be an exceptional case for the resort to war, the constraints on the conduct of war would perhaps need to be observed all the more scrupulously. 8 7 My own understanding is that far from the elimination of the regime having been a means to the end of eliminating WMDs, the nonexistent WMDs were a pretext for pursuing the end of eliminating the regime, which was the real purpose of the war for the tiny band of embittered men in Washington who were eager to launch the war. The fact that the means used were so wildly inappropriate to the goal announced is an additional reason not to believe that the goal announced was the genuine goal. Nothing in my argument depends on the accuracy of this historical understanding, however. 8 I might well have listed proportionality as an additional necessary condition of a justified EMA. I chose not to simply because proportionality is a necessary condition of every use of force, and I am

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Restraint about what may be done could, on the other hand, be a partial solution to a problem that Luban identifies: ‘The targets of a preventive war cannot know that once they are conquered their basic rights—including their propertyrights and political rights—will be honored. Their assailant may assure the world that its war-aims go no further than removing an emerging threat, but why should people under attack believe them? Once vanquished, they are at the mercy of their conqueror.’ 9 One way to have some reassurance, whether or not compelling, is to establish as a firm necessary condition that a justified EMA not only may not involve violations of basic rights but may not attempt conquest and occupation without a very powerful showing that conquest and occupation are necessary to eliminate or prevent the danger against which the EMA is supposed to be directed. A second way to fail to satisfy this first necessary condition is to use nuclear weapons in an EMA, as the Bush/Cheney administration has been preparing to do. A policy of using nuclear weapons in ‘preemption’ has been clearly implied, while not straightforwardly stated: The United States will continue to make clear that it reserves the right to respond with overwhelming force—including through resort to all of our options—to the use of WMD against the United States, our forces abroad, and friends and allies. In addition to our conventional and nuclear response and defense capabilities, our overall deterrent posture against WMD threats is reinforced by. . . . Because deterrence may not succeed, and because of the potentially devastating consequences of WMD use against our forces and civilian population, U.S. military forces and appropriate civilian agencies must have the capability to defend against WMD-armed adversaries, including in appropriate cases through preemptive measures. 10

Adding to the grounds for concern are plans by the Bush/Cheney administration to place missiles designed specifically for what it calls ‘preemption’, some with nuclear warheads and some with conventional warheads, together on the very same submarine: The Pentagon is pressing Congress to approve the development of a new weapon that would enable the United States to carry out nonnuclear strikes against distant targets just one hour after they were detected. The weapon—a nonnuclear version of the submarinelaunched Trident-2 missile—could be used to attack terrorist camps, enemy missiles sites, suspected caches of weapons of mass destruction and other potentially urgent threats, military officials say. . . . But the program has run into resistance from lawmakers who are concerned that it may increase the risk of accidental nuclear war. The Trident-2 missile that would be used for the attacks is a system that has long been equipped with a nuclear attempting to generate necessary conditions specifically applicable to EMAs. But proportionality is of course also required. 9

See ch. 7 by Luban, 193. United States, White House, National Strategy to Combat Weapons of Mass Destruction (December 2002), 3. http://www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf. (accessed 12/12/2006). 10

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payload. Indeed, both nonnuclear and nuclear-tipped variants of the Trident-2 missile would be loaded on the same submarines under the Pentagon plan. 11

Mixing nuclear and nonnuclear missiles together on the same subs could be either an attempt at deceiving US voters about what the US government’s plans are, an accident waiting to happen, or both. Further, seasoned and judicious analysts have reported serious examination by the Bush/Cheney administration of options for using nuclear warheads against Iranian nuclear facilities: ‘One of the military’s initial option plans, as presented to the White House by the Pentagon this winter [05–06], calls for the use of a bunker-buster tactical nuclear weapon, such as the B61-11, against underground nuclear sites. One target is Iran’s main centrifuge plant, at Natanz. . . .’ 12 The case for thinking that a violation of the 60-year-old tradition of non-use of nuclear weapons for such a purpose would be wildly disproportionate has been made by scholars as different as George Quester and Nina Tannenwald. 13 Certainly the effective road to the elimination of WMDs does not lie through the legitimation in practice of the use of nuclear weapons, which is far more likely to promote their proliferation. Space is not available here to repeat that case in detail.

9.2. URGENCY OF THE USE OF FORCE: WE HAVE NO TIME From the point of view of the law and morality of war, an EMA is a proposed exception to the established understanding of the principles governing the resort to, or initiation of, war. The general idea of a situation calling for an EMA is one in which it is unreasonable to wait any longer for nonmilitary means to be tried. So the case for the EMA depends on there being special reasons to be in a hurry. The second necessary condition for a justified EMA, if there be any, has, then, begun to emerge. Action—and specifically military action, since an EMA is after all an act of war—must be urgently required. It must be the case that time is of the essence, and delay is intolerable. 14 Politicians are often in a hurry to begin military action. 11 Michael R. Gordon, ‘Pentagon Pushes for Rapid-Strike Missile’, International Herald Tribune, May 29, 2006, 1. 12 Seymour M. Hersh, ‘The Iran Plans’, The New Yorker (April 17, 2006), 32. On US nuclear policy more generally, see the following debate: Keir Lieber and Daryl Press, ‘The Rise of U.S. Nuclear Primacy’, Foreign Affairs 85: 2 (March/April 2006), 42–54; Peter C. W. Flory, Keith Payne, Pavel Podvig, Alexei Arbatov, and Keir Lieber and Daryl Press, ‘Nuclear Exchange: Does Washington Really Have (or Want) Nuclear Primacy?’, Foreign Affairs, 85: 5 (September/November 2006), 149–57. 13 See George H. Quester, Nuclear First Strike: Consequences of a Broken Taboo (Baltimore, MD: Johns Hopkins University Press, 2006); and Nina Tannenwald, The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945 (Cambridge: Cambridge University Press, 2007). 14 There is of course delay and delay. The plans mentioned above (to make decisions about firing missiles from Trident submarines within one hour of being told about a possible target) strike me as irresponsible madness, not urgency. The issue of the degree of urgency requires fuller discussion, of course, but matters can be extremely urgent and still allow enough time to take care not to make

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Military people who understand war are usually more reluctant. For the politicians, the resort to war relieves them of the burden of solving the problem and dumps the problem into the lap of the military. There must be compelling reasons why a military strike must be conducted now. On the other hand, it is built into the notion of an EMA that there is no imminent threat. If there were an imminent threat, the proposed military response might count as preemption. By hypothesis, an EMA is a response to something other than an imminent threat. What could require action urgently while not being an imminent threat? I have not found any published careful attempt to explain this, but the idea seems to be something like a notion of a last chance. 15 Now is the last chance to deal with a potentially devastating danger. Later will be too late; as George W. Bush said on ‘Meet the Press’: ‘We deal with those threats before they become imminent. It’s too late if they become imminent.’ 16 The implicit thought seems to be something like the following. Suppose the mythical Iraqi WMDs in 2003 had been real, and suppose the secular dictator would have been willing to turn some of them over to religious fanatics of the kind he had opposed all his life. Suppose the location of the WMDs was known in April 2003 so that they could be destroyed at that time, but later, after they had been dispersed among terrorists, at least some of them would be impossible to trace, locate, and destroy. So the last chance to destroy them would have been April 2003 while their location was still known. What I am calling ‘last chance’ seems to be a version of what is usually labeled ‘last resort’. Military action can be terrible, and its course is usually unpredictable. Therefore, war must never be resorted to too soon, too readily, or unnecessarily. No military action is ever justified unless it is necessary. This is the general idea of the long-standing requirement that war be the last resort. WMD can be eliminated in several different ways; destruction by means of military attack is only one. Elimination by means of an effective inspection system like the UN system in Iraq in the 1990s is another: disarmament by largely peaceful means, backed up by the threat of military coercion. A preventive attack on WMD is disarmament by purely military means. The choice of military means can be justified only if no time remains to implement inspection systems or other less violent means of disarmament. It is frequently argued that preventive, and even preemptive, military action can be justified only if the costs of delay are great. This formulation is too general. It is not costs in general that matter; in order to avoid military action it may well be tragic mistakes. To think otherwise is to discount radically the value of the lives of those whom you will murder if you get it wrong. If action somehow genuinely were required within an hour, it would in any case then be an instance of Websterian preemption, not of the kind of EMA that the Bush/Cheney administration often calls ‘preemption’. 15 The discussion in the chapter by Rodin of the relation between imminence and certainty is relevant. Also see Zahler Bryan, Initiating Force: A Re-Consideration of the Justifications, M.Phil. thesis (Oxford, 2007). 16 ‘Meet the Press with Tim Russert’, Transcript for February 8, 2004, 5. http://www.msnbc. msn.com/id/4179618 (accessed 24/03/2004).

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worth incurring considerable costs of various kinds, certainly including economic costs. The ‘cost’ that must not be incurred is the loss of the last opportunity, for example, to eliminate WMDs before they are used. Consequently, it is better to think, not in terms of costs generally, but specifically in terms of lost opportunities to prevent a terrible outcome. Time for eliminating weapons can have run out because an attack is imminent: if the adversary does not lose them, it will use them. But it also appears possible that time might be running out, not because use is imminent, in which case an attack could be a preemption in the standard Websterian sense, but for some other reason. What other reasons could there be? Dispersal, as already indicated, is one. Many specialists did not believe that Saddam Hussein would have turned over any WMDs he controlled to terrorists, because he would have had his own purposes for them. But suppose that he, or some other dictator more supportive than he of religiously fanatical terrorists, had produced a substantial stock of WMD, and suppose that some highly competent intelligence agency had pinpointed and confirmed the location of the stockpile. This highly competent intelligence agency (call it HCIA) also had solid knowledge that the plan was to disperse the stockpile among a large number of terrorist units that would fan out around the globe. To make the matter concrete, suppose there are numerous sealed containers of smallpox virus genetically modified for enhanced virulence now all in one place; each container will be transported by a different terrorist unit to a different city around the world for release into the general population of each. 17 This might indeed constitute the last chance to prevent multiple releases of the virus. The general principle that what justifies limits, however, applies as much as always. Reasons that justify acting quickly do not also justify acting indiscriminately or acting more violently than military necessity requires. Reasons for acting quickly simply are not reasons for acting indiscriminately, or in any way other than quickly. And common sense tells us that acting quickly is, other things being equal, likely to lead to acting indiscriminately precisely because of the haste. If anything, then, reasons for acting quickly are also reasons to be especially careful not to act indiscriminately. If the attack on the virus supply were accurate and discriminate, calculated to destroy only the virus supply and the structures that contained it, the first necessary condition, limitation to means required by the justifying end, could be satisfied. 18 How about the second necessary condition, urgency? Would a military attack designed to annihilate the virus supply immediately prior to dispersal be justified? I find it hard to see why one would deny it, ‘in a case just like this’. 19 That it is built 17

Compare the ‘Virus Case’ in the chapter by Buchanan. I would simply observe that this is at the other extreme from the invasion and occupation of entire nations; we are talking about the destruction of something like one complex of production and storage facilities—in normal terminology, a preventive strike, not a preventive war. 19 Henry Shue, ‘Torture’, Philosophy & Public Affairs, 7: 2 (Winter 1978), 141. Compare Henry Shue, ‘Torture in Dreamland: Disposing of the Ticking Bomb’, Case Western Reserve Journal of International Law, 37: 2 and 3 (2006), 231–9. 18

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into the example that we do definitely know about the virus and the plans for it is one of several similarities with the ‘ticking bomb’ hypotheticals used to justify torture: the torturers always have the right man, the one who actually planted the bomb; it is a long way from that hypothetical world to Abu Ghraib, not to mention the confusion of Guantanamo Bay. And a long way from ‘HCIA’ to CIA. How far is it from our hypothetical about the accurately pinpointed location of genetically modified smallpox to the real world?

9.3. ACCURATE ASSESSMENT: WE KNOW WHERE THEY ARE The most unrealistic premise underlying my hypothetical above about smallpox virus is the accurate real-time intelligence. Clauswitz long ago noted: War is a flimsy structure that can easily collapse and bury us in its ruins. The textbooks agree, of course, that we should only believe reliable intelligence, and should never cease to be suspicious, but what is the use of such feeble maxims? . . . Most intelligence is false, and the effect of fear is to multiply lies and inaccuracies. As a rule most men would rather believe bad news than good, and rather tend to exaggerate the bad news. 20

State Department veteran, Greg Thielmann, has recently offered more measured but still cautionary observations: ‘Intelligence does not need to be infallible to be valuable, but neither should it be pushed beyond its natural limits. For intelligence analysts to overstate their confidence level is to set up the policy-maker for disaster. . . .’ 21 Multiple specific factors compound to promote the exaggeration of threats. Thielmann has carefully analyzed four separate factors that encourage the ‘intelligence community (IC)’ to exaggerate threats in a manner that feeds the impulse to launch preventive military actions: [1] adversary ‘government leaders themselves may not know their own minds or may not be in complete control of events’; [2] ‘failures to provide warning . . . were occasions for severe criticism. . . . Partly as a consequence of such reactions, the IC has preferred to warn of improbable events or sensationalize relatively insignificant developments rather than to risk a failure to warn against the unexpected’; [3] ‘the states that the United States is monitoring also have an incentive to exaggerate their own capabilities, particularly those states that fear intervention from stronger powers’; and [4] ‘political and military leaders prefer that the IC err on the side of warnings that are too many or too strident rather than too few or too ambiguous. 22 20 Carl von Clausewitz, On War, ed. and tr. by Michael Howard and Peter Paret (Woodstock, Oxon. and Princeton, NJ: Princeton University Press, 1984), bk. 1, ch. 6 [117]. For general consideration of current issues, see Christopher Andrew and Wesley Wark (eds), Secret Intelligence: A Reader (London: Routledge, 2007). 21 Greg Thielmann, ‘Intelligence in Preventive Military Strategy’, in William W. Keller and Gordon R. Mitchell (eds), Hitting First: Preventive Force in U.S. Security Strategy (Pittsburgh, PA: University of Pittsburgh Press, 2006), 156. 22 Thielmann, ‘Intelligence in Preventive Military Strategy’, 156–8. Factors [2] and [4] are perhaps two sides of the same coin; [1] could produce either over- or underestimation of threats, it seems to me.

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Thielmann concludes that the fiasco over intelligence about Iraq was not an unusual case: The Iraqi example stands as a harbinger of a grim alternative future when inherently imperfect intelligence combines poisonously with an aggressive approach to war. In examining the Iraqi threat, the IC again assigned warning top priority, arriving at a classical ‘worstcase’ assessment. The Key Judgments of the classified October 2002 National Intelligence Estimate (NIE) on Iraqi ‘WMD’ were full of frightening scenarios that, even at the time, many analysts regarded as either unlikely or possibly only relevant to some more distant future. 23

If the rapid-strike missiles mentioned on pp. 226–7, designed to hit ‘distant targets just one hour after they are detected’, become part of the US arsenal, ‘acquiring the sort of precise intelligence that would give the president enough confidence to order the launch of a ballistic missile within an hour might also be a daunting proposition.’ 24 But how daunting would depend on the extent of the president’s confidence in his own intuitive judgment, confidence on which George W. Bush prides himself. Other chapters in this volume are replete with hypothetical cases in which ‘we know’ such-and-such and respond accordingly. The simple but crucial worry is: how likely is it that what we come to believe about possible threats that might be the targets of EMAs will be true, especially if the evidence is evaluated for under one hour? Thielmann’s thesis is that, quite apart from the incompetence, straightforward error, and confusion to which we are all subject, intelligence agencies are subject to as many as four distinctive pressures to err on the side of overestimating threats. This seems to me to mean that rather than serving as a brake on tendencies to rush into war, like those of the Bush/Cheney administration in 2002–3, intelligence agencies are more likely to grease the skids. This does nothing to show that ‘in a case just like this’ a carefully limited EMA might not be justified, but it does caution against leaping to any conclusions about the real political world in which we actually live. Manifestly, then, a third necessary condition of justified EMAs would be the availability of reliable and conservative information provided by highly cautious and competent intelligence agencies. On the best imaginable interpretation, the Anglo-American attack on Iraq in 2003 was a tragic mistake, with some unintended positive side effects and enormous unintended negative side effects, in a still-fluid balance of effects that remains to be seen over the longer term. Thousands and thousands of ordinary people do not survive military adventures like this one. As I indicated at the beginning, it would be intellectually dishonest simply to tar the general idea of preventive war and preventive strike with the brush of

23 24

Thielmann, ‘Intelligence in Preventive Military Strategy’, 159. Michael R. Gordon, ‘Pentagon Pushes for Rapid-Strike Missile’, 1 and 8.

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Iraq. 25 The question is: what would make other cases different? If they satisfied the first necessary condition recommended here, they would be far more limited. And if they satisfied the second, they would represent, not an eager rush to war, but a reluctant last resort in an urgent situation. That we know a situation is urgent, however, is a hypothetical condition. The next question is: how do we reliably come to know such things? The third necessary condition, then, is that intelligence assessment be freed of the political and psychological pressures toward exaggeration to which it is now subject, if this is humanly possible. Is it possible?

9.4. MULTILATERAL AUTHORIZATION: STABILITY, ACCURACY, AND AUTHORITY A fourth possible requirement, multilateral authorization for preventive attack, might take several forms, and might be supported for several different reasons, including the hope that the procedure involved in acquiring the authorization would help guard against the danger of exaggerated perceptions of threats that we have just noted. I briefly explore some alternative forms of, and reasons for, multilateral authorization, beginning with a reason quite separate from a concern with arriving at accurate information about potential threats, namely stability; then returning to accuracy; and moving on next to authority. Debates about multilateralism and unilateralism have tended to mingle a wide variety of considerations in a rather murky stew. 26 Roughly the same solution, a requirement of multilateral authorization, is being proposed in the context of preventive attack for at least three different problems; not surprisingly it turns out to be a better solution for some of the problems than for others. 27

9.4.1. Stability One of the main reasons that a general practice of preventive attack is dangerous is that, as Schelling argued decades ago, 28 it feeds the vicious circle of mutual fear of surprise attack, which Crawford refers to as ‘the spiral of anticipation’ and Luban 25 Those in this volume who defend some form of preventive war and/or strike—David Luban, Walter Sinnott-Armstrong, and Allen Buchanan—distance themselves from the war begun in Iraq in 2003. 26 For good samplings of the variety of views, see Stewart Patrick and Shepard Forman (eds), Multilateralism & U.S. Foreign Policy: Ambivalent Engagement (Boulder, CO and London: Lynne Rienner, 2002); and David M. Malone and Yuen Foong Khong (eds), Unilateralism & U.S. Foreign Policy: International Perspectives (Boulder, CO and London: Lynne Rienner, 2003). 27 I have benefited from sorting through these issues with Zahler Bryan. 28 Thomas C. Schelling, The Strategy of Conflict (Oxford: Oxford University Press, 1960), 205–29.

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calls ‘the self-fulfilling prophecy problem’. 29 If one operates in an international arena in which both belief and general practice are committed to a principle of no-first-use of force, one can be relatively confident that one is less likely to become involved in a military conflict if one does not strike first than if one does strike first, because more likely than not—not, of course, surely—one’s adversary will not strike one first. Nothing is assured, but the safer course—this is entirely about prudence, not at all about morality—is not to strike first. By contrast, if one operates in an international arena in which belief, practice, or both permit first strikes of any kind, including what I am here calling EMAs, the safer course may be to strike first—to attempt to prevent the attempted prevention. Each side must fear that the other side will strike first. Given even only self-protective purposes on both sides—an important point—it may still be rational to attack rather than to wait to be attacked. 30 The profound importance of a prohibition against all first strikes that was generally accepted would be that the fear of surprise attack would be minimized and the cycle of reciprocal fear would be as unlikely to begin to spiral as it could be in an armed world. It is rational and relatively safe in such a world not to attack until an attack against oneself is imminent, that is fits the classic, or Websterian, account of preemption, strictly speaking. A norm of no-first-use that is generally practiced and subscribed to reduces fear of surprise attack to the minimum possible in a world with military capabilities for vast destruction. 31 To reduce the fear further, the capabilities would have to be eliminated (hence, one appeal of general disarmament). The first point to notice, however, is that it is, in a sense, the form, not the substance, of the general norm of no-first-use that breaks the vicious circle, or, in Luban’s terms, silences the self-fulfilling prophecy. As long as one has armed adversaries, one cannot avoid at least a little worry about surprise attack. But if the objective odds clearly are against it, and one can see that they are, one may be able to keep one’s fear in its place. What nourishes the vicious circle of mutual fear is uncertainty: if one cannot be confident that the odds are strongly against surprise attack, it seems (on some reasonable readings: it is) rational to limit damage, which is a protective purpose, by destroying the munitions in the hands of the adversary before they are used on oneself. Where a norm of no-first-use is widely accepted and followed, it is predictable that one’s adversary will more likely than not refrain from surprise attack. It is usually in one’s rational self-interest, in this 29

See the chs. 4, 7 in this volume by Neta Crawford and David Luban. I believe that Luban has successfully shown, contrary to Rodin, that this is not a paradox but a strategic problem (see also ch. 6 by David Rodin in this volume). It seems to be a paradox, I believe, only when described very abstractly. 30 I have explored this for the extraordinarily dangerous case of the strategy of launch-on-warning that applied to nuclear missiles in the last years of the Cold War in Henry Shue, ‘Having It Both Ways: The Gradual Wrong Turn in American Strategy’, in Henry Shue (ed.), Nuclear Deterrence and Moral Restraint (Cambridge and New York: Cambridge University Press, 1989), 13–49. 31 I have discussed this a little more fully in ‘Preemption, Prevention, and Predation: Why the Bush Strategy is Dangerous’, Philosophic Exchange, no. 35 (2004–5), 5–17.

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context, not to launch an EMA because to do so would be to start a war that more than likely was not going to happen otherwise. This is because one is usually much better-off staying out of wars—again, this is pure prudence, morality left aside. The most notable exception may be ‘strangling the baby in the cradle’: defeating at an early stage an enemy with whom a war must in fact be fought sooner or later. 32 The times when EMAs are most likely to be launched are naturally the times when it is believed (a) that war is inevitable whatever one does and (b) that the sooner one fights it, the better off one will be. 33 In saying that it is the form, not the substance, of the no-first-use norm that breaks the vicious circle I mean that the key element is the predictability, or absence of great uncertainty, that results from an entrenched norm about a procedure that is to be followed. For this purpose, what the procedure is seems largely irrelevant. Suppose that the norm had as its content, not a prohibition on first-use of force, but a requirement that the Secretary of the Treasury count to one billion before any strike is launched. This too could give predictability. One could investigate: do they have a Secretary of the Treasury who can count to a billion without losing his place? If so, how long will it take him? Meanwhile, one need not launch a preventive strike and could negotiate about having the count suspended, and so forth. The point is: one can be free of fear of surprise attack not only where there is a norm prohibiting first-use of force but where first-use is permitted but only in accord with certain constraints that are specific and generally known. One is, of course, not free of the fear of eventual attack—the attack may come once the procedure has been completed—but one is as free as one can be of the fear of the attack’s being a surprise. A silly example is requiring a prior count to a billion. A serious example would be: requiring the approval of a genuinely authoritative multilateral institution. But in principle, the procedure could consist of the approval of any agent whose conclusions would be clear and public, for example, the president of the International Olympic Committee, the pope, or the mayor of Nairobi. The present point is that, for the purpose of stability (breaking the cycle of mutual fear), it does not matter whether the decision maker speaks from any ultimately authoritative basis as long as s/he speaks decisively on this question. 34 The frivolous examples have a serious point. Some people think the UN Security Council ranks close to the mayor of Nairobi in inherent authority over the international use of force. Virtually all that the Security Council does in public is announce its prior decisions—the decisions are made during secret deliberations; 32

If such certainty about indeterminate future events is even coherent—see subsequent note to Aristotle’s famous discussion of the future sea-battle. 33 See chs. 1, 2 by Strachan and Trachtenberg for the historical role of the assumptions that more likely than not war is coming whatever one does and that, consequently, the sooner, the better; also see the section of the Introduction on ‘General Preventive-War Thinking’. This all suggests that Crawford is correct, in her chapter, to worry about whether the High Level Panel and the Secretary-General are buying too readily into an assumption that we can know that war must come even when the situation remains fluid and depends on human decisions. 34 Genuine authority, as distinguished from systemic stability, is the third possible goal of a requirement of multilateral authorization, discussed later in this section of the chapter.

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as the corrosive behavior of the United States and the UK in the run-up to the vote in the Security Council on the authorization of the 2003 attack on Iraq demonstrated, Security Council votes are sometimes bought and sold. The Permanent Five sometimes spy on their colleagues on the Council and threaten seriously to harm at least the weaker nonpermanent members who vote against them. In general, the Council is dominated by five states with WMDs, some of whom (at least, United States, UK, and PRC) are still investing heavily in more advanced WMDs. A nontransparent process of voting with sometimes-coerced votes is not inherently deserving of much respect (not that domestic decision-making in many states is very different). Nevertheless, even a bad process that yielded predictability could be better than the anarchy of mutual fear of surprise attack insofar as it prevented unnecessary uses of force. If everyone agreed not to launch an EMA without the approval of the Security Council (or the mayor of Nairobi), this would provide predictability and undermine the vicious circle of mutual fear of surprise attack. For now, of course, no major power has committed, or is likely to commit, itself to refrain from EMAs against what it perceives as potentially devastating dangers until it has the approval of the Security Council, or of anyone else. Yet, in spite of the spying and bullying by the United States and others, and the obsessive secrecy of the deliberations or negotiations within the Security Council, a world in which everyone with arms refrained from EMAs unless they were approved by the Security Council might be a safer world than the world evolving now, insofar as the spiral of anticipation would have been broken. 35 Many procedures could be better than none insofar as the worry is specifically about the Schelling spiral. On the other hand, insofar as any procedure blocked EMAs that were advisable in that they would indeed forestall unprovoked attacks that would occur unless prevented by force, a restrictive procedure could make the world more dangerous. 36 The ideal procedure would yield approvals of EMAs that were neither overinclusive nor under-inclusive. Ideally, the procedure would yield judgments about when early attack would be appropriate that were accurate.

9.4.2. Accuracy The Schelling spiral arises, of course, from the strategic interactions of rational actors; it is applicable to the international arena only to the extent that this arena is populated by rational actors. Allen Buchanan’s argument for multilateral authorization of EMAs, on the other hand, is based on the actual failings of real actors and returns us to, among other things, the difficulty of reaching accurate, unbiased assessments of threats: 35 To this extent Crawford may underestimate the value of the suggestion by the High Level Panel that UN Security Council authorization be required. 36 Allen Buchanan, David Luban, and Walter Sinnott-Armstrong emphasize these costs in arguing against a blanket prohibition on preventive force. See chs. 5, 7, and 8 in this volume.

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The special risks involved in relying on the idea that self-defense can include preventive war are due to the way the inherently speculative character of this justification interacts with the cognitive and moral limitations of the agents who are likely to invoke it. Because the harm to be averted is speculative, there are ample opportunities for honest mistakes in prediction, bias in the interpretation of evidence and hence in estimating both the magnitude and the probability of the anticipated harm, and hence for self-deception as well as deception of others. 37

The multilateral accountability mechanism proposed earlier by Buchanan and Robert Keohane would require ex ante agreement to an ex post impartial review by a relatively impartial body of any decisions about what I am calling EMAs. 38 It is intended to create incentives for the avoidance of the all-too-human (and all-too-political) failings catalogued above: Keohane and I argued that the special risks of relying on preventive self-defense justifications can only be adequately reduced by requiring . . . the decision to engage in preventive action to be made through a multilateral institutional procedure that ensures the accountability of both the party that proposes preventive force and those who are to approve or disapprove its request for authorization to use it. 39

For these reasons ‘institutional innovation is a necessary condition for justified preventive self-defense.’ 40 Pending the creation of such a multilateral institution, the United States could have at least approximated adequate accountability by precommitting in 2003 to an ex post impartial review of its Iraq invasion. Responsible self-binding, in this case, would not have required full-blown institutional innovation. The Buchanan/Keohane accountability mechanism would undermine the Schelling spiral of mutual fear of surprise attack, provided it adopted or generated, as it presumably would, clear guidelines that made EMAs predictable (and more importantly, made the likely absence of EMAs predictable). So would any sensible procedure, and some silly procedures as well, as long as they eliminated uncertainty. In addition, some of the value-added specifically by the Buchanan/Keohane procedure would be its incentive effect in improving the quality of decisionmaking by, for example, discouraging reliance on unreliable intelligence sources by making it expensive for the attacker (as well as the victim) when the attacker gets it as far wrong as the United States and UK did concerning Iraq. Nations that opposed needed EMAs, as well as nations that engaged in unneeded EMAs, 37

Allen Buchanan, ‘Institutionalizing the Just War’, Philosophy & Public Affairs, 34: 1 (Winter 2006), 16. Every failing mentioned by Buchanan was displayed during the US decision, actually made in 2002 before the pretense of consulting the UN Security Council, to attack Iraq in 2003. See Danner, The Secret Way to War. 38 See Allen Buchanan and Robert O. Keohane, ‘The Preventive Use of Force: A Cosmopolitan Institutional Proposal’, Ethics & International Affairs, 18: 1 (2004), 1–22. Also see Steven Lee, ‘A Moral Critique of the Cosmopolitan Institutional Proposal’, Ethics & International Affairs, 19: 2 (2005), 99– 107; and Allen Buchanan and Robert O. Keohane, ‘Justifying Preventive Force: Reply to Steven Lee’, Ethics & International Affairs, 19: 2 (2005), 109–11. 39 Buchanan, ‘Institutionalizing the Just War’, 18. 40 Ibid., 21.

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would be expected to pay to some extent for the damage resulting from their bad judgment. One question is how strong the incentive effects of the procedure would be and how effective it would be in achieving accuracy. I have granted that it would contribute significantly to solving the problem of stability, but almost any widely accepted definite procedure would. To what extent would it yield accurate judgments? Inaccuracy seems to have at least two sources, which cannot be fully discussed here but only noted. First are the pressures for exaggerating threats that make unnecessary attacks likely, as reported in the earlier section on ‘Accurate Assessment’ drawing on the analysis by Greg Thielmann. Could any penalties incurred by nations making faulty judgments in favor of unnecessary attacks be translated into bureaucratic counterpressures against the motivations for the threat exaggeration that feeds unnecessary attacks? A second source are the deep problems inherent in any attempt to predict the future of events subject to both human decision and independent changes in circumstances. David Rodin wrestles with the relation between the imminence of military attacks, and the degree of certainty we are able to attain concerning them. 41 This again is a complex bundle of issues I cannot explore here, but it is not evident that different motivations and incentive structures can solve all these problems, some of which may be intractable. David Luban may be correct that what ultimately matters is the degree of certainty of an attack, not the degree of temporal imminence. 42 Nevertheless, other things equal, degree of certainty does tend in fact to vary with degree of temporal imminence. One reason is that whatever people have decided to do in the more distant future, they may either change their minds for reasons they themselves cannot foresee (indeterminacy) or be prevented by third parties or natural events from carrying out their decision (possibility of change). Indeterminacy and the possibility of change increase uncertainty. It is not clear that any feature of the Buchanan/Keohane accountability mechanism can produce better ways of dealing with indeterminacy and change. 43 But the likely empirical effects of the mechanism deserve much more discussion than I can provide here. A second obvious question is: why would major powers be any more likely to commit themselves to something like the Buchanan/Keohane mechanism than to, say, prior approval by the Security Council? As Crawford lays out in detail, the Secretary-General’s High Level Panel and subsequently the Secretary-General himself contemplate future Security Council approvals of some EMAs. But any EMA without Security Council approval would still be in violation of international law, specifically the UN Charter, Article 51. Buchanan objects, with reason, to the requirement of Security Council approval on the grounds that there is 41

See ch. 6 in this volume by Rodin. See Luban, ‘Preventive War’, 230 ff., and Luban’s ch. 7 in this volume. 43 These issues go back at least to Aristotle, De Interpretatione, ch. 9, 19a—see G. E. M. Anscombe, ‘Aristotle and the Sea Battle’, Mind, n.s. vol. 65 (1956), no. 257, 1–15; and Jaakko Hintikka, ‘Necessity, Universality, and Time in Aristotle’, Ajatus, 20 (1957), 65–90. 42

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no accountability for the consequences of a veto. 44 A veto can lead to disaster, and the permanent member state that cast the veto gets away scot-free, whatever the true reasons for the veto. I would add that the secrecy in which vetoes are traded among the permanent five is inappropriate to life-and-death decisions of this magnitude. In any case, rightly or wrongly, no major power is likely in fact to agree to acknowledge that it needs Security Council approval for an EMA that it either genuinely believes, or can plausibly make to appear, to be vital to its security. Any attempt to require Security Council authorization of EMAs strikes me as a political non-starter, because of the membership and procedures, especially the permanent vetoes, of the Council, whatever the moral and legal basis may be for such a requirement. Why should the Buchanan/Keohane mechanism fare any better? One significant difference is the distinction between prior approval and ex post impartial review. The Buchanan/Keohane mechanism makes no pretense of being able to stop major military powers from acting on their own judgment about what their security requires (for better or for worse). The only requirement that applies prior to the EMA is a prior commitment to the impartial review that will occur after the event. This seems little enough to ask of any unit that claims to be a responsible agent within the international community and is employing military force entirely outside its own jurisdiction.

9.4.3. Authority In 1998, I made a proposal similar in spirit to the one by Buchanan and Keohane, but much less elaborately worked out, for the other most common case of military action that is not in response to an attack on oneself, ‘humanitarian’ military intervention: ‘It is important that all major decisions about military intervention, con as well as pro, still be subjected to systematic independent review, even if review must occur after rather than before the action or inaction. Impartial review is far more important in current circumstances than advance authorization by a “multilateral” body of doubtful moral authority and it can be conducted by a body that consciously aims at an impartial point of view.’ 45 The ‘ “multilateral” body of doubtful moral authority’ I had in mind was of course the UN Security Council. Its appalling failure to act against the Rwandan genocide, even though it had a force already in the country before the long-predicted genocide actually began, was the focus of indignation at the time. 46 44

Buchanan, ‘Institutionalizing the Just War’, 20, n. 15. Henry Shue, ‘Let Whatever is Smouldering Erupt? Conditional Sovereignty, Reviewable Intervention, and Rwanda 1994’, in Albert Paolini, Anthony P. Jarvis and Christian Reus-Smit (eds), Between Sovereignty and Global Governance: The United Nations, the State and Civil Society (London: Macmillan, 1998), 75. Compare Thomas Pogge, ‘Moralizing Humanitarian Intervention: Why Jurying Fails and How Law Can Work’, in Terry Nardin and Melissa S. Williams (eds), Humanitarian Intervention, NOMOS XLVII (London and New York: New York University Press, 2006), 158–87. 46 Alison Des Forges, ‘Leave None to Tell the Story’: Genocide in Rwanda (New York: Human Rights Watch, 1999). 45

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Thus like Buchanan and Keohane on preventive war, I thought it was important that decisions in both directions, to do something and to do nothing, be subjected to impartial review, because I hoped an exercise of power could become an exercise of reason as well. In the case of an EMA, approval of which was blocked by one or more members of the Security Council, but conducted anyhow, the review would, as Buchanan emphasizes, examine the actions of both those who acted and those who tried to block action. Profound doubts about such reviews arise from opposite directions. Why would powerful nations perfectly capable of attacking whomever they like agree to an official impartial review afterwards? And so what if they did?—what good would that do after all the victims are dead? Both lines of questioning, however, have related answers. In sum, reasons can matter, even in international affairs. The ‘realist’ picture of international affairs as entirely a matter of material wealth and military power is false, in omitting how the principal agents understand what they are doing. Affecting their understandings by affecting their reasons can affect their actions. It is no good simply saying that EMAs (or ‘humanitarian’ military interventions) are to be conducted only when they are justified by good reasons. That is a wish, fervently to be made, but it is not a useful suggestion about how to proceed. How do we, in effect, politically empower good reasons? This does not seem to be impossible. Nicholas Wheeler contends: ‘State actions will be constrained if they cannot be justified in terms of a plausible legitimating reason. . . . Rules and norms both constrain and enable actors.’ 47 National politicians like to keep up the appearance that they head responsible states, not rogue states. This requires them to try to defend what their states do by appealing to considerations that others will accept as good reasons. Unfortunately, this leaves a high degree of latitude, and it obviously tempts lying about the nature of what is being done and the reasons for it. Nevertheless, words do have some established meanings that limit how actions can plausibly be described and what can plausibly be said to justify actions of a particular description. 48 So, there is at least a little hope that if clear criteria can be established for what counts as ‘preemption’ or ‘preventive war’ and then the bad reasons for the practice as specified can be exposed and the good reasons can be explained, it may turn out that actions that clearly fit the criteria will not be justifiable in practice unless some of the good reasons are in fact applicable. To some degree this can happen, very slowly, through ordinary intellectual exchanges and social criticism. One way to try to speed up the process is to create what amounts to an authoritative forum, pronouncements from which might carry a little extra weight and be a little more difficult for governments to ignore. This was my thought in 1998 about ‘reviewable intervention’: if some relatively distinguished and relatively impartial group systematically commented on major decisions about whether to 47 Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), 4 and 6. 48 Walzer, Just and Unjust Wars, 14: ‘We call this a retreat. . . . We call this a massacre’.

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intervene—now, for example, the once-again appalling decisions not to intervene with effective military force in Darfur and in the areas of Chad invaded by Sudansponsored killers—their judgments might become more refined and sophisticated in themselves and might come to exert greater political influence. 49 I take it that the Buchanan/Keohane accountability mechanism would be intended to do at least this for the case of EMAs, although I gather that they hope to make its judgments somehow enforceable as well. Why, then, might powerful states strong enough to attack whomever they wish agree to subsequent official impartial review afterwards? Because states normally want to maintain a reputation for being responsible, not rogue or outlaw, states— of acting on the basis of good reasons, including in this case of course solid evidence supporting whatever accusations they make about matters like possession of WMDs. If they want to maintain that they acted for good reasons that everyone could understand, and one purpose of any review or accountability mechanism is to examine how good their reasons turned out to be, there would be at least some pressure to submit their case to review, or, as Buchanan/Keohane would have it, commit themselves in advance of the action to submit the case for review afterwards. In advance of the proposed action, the state leaders would ordinarily be attempting to convince others that the action would be justified. One way to convey the impression that they themselves were confident in their reasons would be to agree to have the reasons formally and impartially critiqued afterwards on the basis of whatever additional information emerged, in as authoritative a manner as possible. If they are unwilling to do this, they would then need at least to try to explain why—with what appear to be good reasons! And what if they did?—what would that accomplish after all the victims of the military action have been killed or wounded? Here there is indeed less reason for hope, but perhaps still a little. Much depends upon how shameless a particular set of leaders are. One of the most discouraging features of the behavior of those in the US government who rushed to attack Iraq in 2003, and those in the Sudanese government who support the genocide in Darfur, is the brazenness with which it is all done. Leaders who feel no shame may feel no need to try to explain why they have violated normal standards and so will feel no pressure to restrict their activities to those for which they can offer plausible reasons. But Wheeler’s hypothesis about the limiting effects of the need to offer plausible justifications appealing to shared standards, which is of course offered as an empirical generalization rather than a 49 One way in which this can happen is that a group can simply appoint itself, as Amnesty International did for the case of violations of human rights. The rights-violating states of the world did not ask for AI’s opinion, but AI gave it, according to consistent standards, and its judgments now carry some weight—see Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Oxford and Princeton, NJ: Princeton University Press, 2001). For the case of ‘humanitarian intervention’ the International Commission on Intervention and State Sovereignty, which was quasi-official, performed a function somewhat similar to the one I was hoping for— see International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa, Canada: International Development Research Center, 2001). There could be an analogous report on preemption and preventive war. That would of course not be the same as a continuing review mechanism considering specific situations like the one proposed by Buchanan and Keohane.

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normative requirement, seems generally to be correct. The realization that other people will be watching you and will expect you to be able to justify on generally acceptable grounds what you choose to do, does sometimes—if, certainly, not always—seem to influence choices about what to do in the direction of justifiable behavior. Inevitably, the powerful vary in their susceptibility to moral pressure. Some will simply tell different lies the next time. Others may act differently. Earlier in this section, then, we have already seen two different rationales in favor of some requirement of multilateral authorization. The first, the appeal to the importance of blocking a Schelling spiral of mutual fear, yields a quite unspecific argument. What is needed is predictability that the threat of surprise attack, or other first attack, is low. Such predictability could be gained in various ways; one way would be through a well-entrenched requirement of multilateral approval of some kind. The purpose would be systemic stability. The Buchanan/Keohane accountability mechanism could serve the first purpose of maintaining the predictability of a relatively low danger of attack, but it is designed specifically to provide other benefits, namely a much better quality of decision-making as a result of penalties for making mistakes. If the mechanism worked, the purpose served would be accuracy. Now we are considering a third possible purpose: acquisition of moral authority. 50 In traditional Western just war theory, one requirement for a justified initiation of force was right authority. Traditionally the source of right authority was the state. For many complex reasons, but not least that the last 100 years has seen multiple genocidal states and no powerful states unwilling to look the other way during the genocides, the contemporary state is often lacking in de facto moral authority. 51 The bestower of right authority for the use of military force may not in future always be the state. Meanwhile, the international arena has moved at least a little distance from utter lawlessness, ‘anarchy,’ and ‘state of nature’. The extent to which laws and norms are actually effective in restraining state behavior is one of the major areas of research in the contemporary field of International Relations. 52 Obviously the matter is complex and not easily summarized. But

50 I believe this argument converges with the Kant/Crawford argument about moving from lawlessness to lawfulness in the international arena—see ch. 4 by Neta Crawford. 51 See Samantha Power, ‘A Problem from Hell’: America and the Age of Genocide (New York: Basic Books, 2002). 52 Besides Wheeler’s Saving Strangers, already cited, notable relevant works include Nina Tannenwald, The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945 (Cambridge: Cambridge University Press, 2007); Martha Finnemore and Richard Barnett, Rules for the World (Ithaca, NY: Cornell University Press, 2005); Martha Finnemore, The Purpose of Intervention Changing Beliefs about the Use of Force (Ithaca, NY: Cornell University Press, 2003); Neta C. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (Cambridge: Cambridge University Press, 2002), 1–398; Ward Thomas, The Ethics of Destruction: Norms and Force in International Relations (Ithaca, NY: Cornell University Press, 2001); Dan Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton, NJ: Princeton University Press, 2001); Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (eds), The Power of Human Rights: Institutional Norms and Domestic Change (Cambridge: Cambridge University Press,

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clearly the international arena is neither purely lawless and determined entirely by material wealth and military power, nor particularly lawful. Kant’s highly appealing proposal, discussed by Crawford, is that one consideration that, whatever the facts about the effects of norms are, ought always to be taken into account by state leaders deciding upon foreign policy is whether a particular manner of proceeding tends to move the situation toward lawlessness or toward lawfulness. This seems quite similar to a traditional theme in just war theory that for a long time was largely ignored but has recently been emphasized by Tony Coates and Tony Coady. 53 This is that one of the main requirements for the justified resort to, and conduct of, war is that a viable peace should result. Obviously peace and rule of law are not the same thing, but they are closely related, each is intrinsically valuable, and rule of law appears to be instrumentally valuable in establishing and maintaining peace. Any serious exploration of these general matters is far beyond the scope of this chapter. Specifically with regard to EMAs, however, it seems clear that, at the very least with other things equal, it would be better if—first to put it very roughly—EMAs were conducted, if they are ever to be conducted, in some law-like manner. What could this mean? For a start, it need not mean that decisions about them must be made by a multilateral institution. We can distinguish the procedural and the substantive. The danger that we are trying to lessen is the danger, famously noted (but not endorsed) by Thucydides, that the powerful will do as they please. 54 One way to try to control the powerful is to subject them to procedural requirements, for example, no EMAs without Security Council approval or without commitment to a Buchanan/Keohane accountability mechanism. Another way to attempt constraint is to subject them to substantive requirements, for example, no EMAs that do not satisfy conditions A through F. In international affairs generally, and certainly in matters of war, the restraints, if any, have so far tended in fact to be substantive, not procedural, so a recommendation of substantive constraints would not be a departure from standard international practice. Even the powerful are expected, for example, not to execute POWs (or torture them to death) and not to attack civilians directly. No relevant procedure is available; it is not the case that POWs can be executed only, say, with the approval of the ICRC. They simply cannot be executed. A substantive prohibition applies. As everyone knows, POWs are nevertheless sometimes executed (although, to my mind, perhaps less often than one might expect). But the issue is: what is the best protection humanly possible for POWs? It appears to be: have an absolutely simple, clear, and unqualified norm that says ‘never kill POWs no matter what’, which is essentially the norm we have. Of course some people violate 1999); Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996). 53

A. J. Coates, The Ethics of War (Manchester, UK: Manchester University Press and New York: St. Martin’s Press, 1997), ch. 11; and C. A. J. Coady, Morality and Political Violence (Cambridge: Cambridge University Press, 2007), ch. 13. 54 For a fresh and insightful reading of the Melian Dialogue, see Christian Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations (Princeton, NJ: Princeton University Press, 1999), 54–61.

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the norm, and of course some people engage in legalistic evasions: ‘These are not POWS—these are unlawful combatants.’ 55 Nevertheless, is there some procedural requirement—some requirement that someone get approval from somebody for something—that would make POWs safer than they are? It is not clear that there is. 56 A multilateral institution, at least in the sense of a multilateral organization or mechanism, is not necessarily the form that a multilateral constraint needs, or ought, to take. Often the best solution is a clear substantive prohibitory norm, firmly entrenched through wide-to-universal multilateral acceptance: ‘this is what it is—don’t do it.’ So two general paths lead away from the danger that we are trying to escape, which is lawless EMAs. One path is by way of procedural restraint, which could conceivably involve the required advance approval of the UN Security Council or the ex post approval of something like the Buchanan/Keohane mechanism. The other path is by way of substantive restraint, which could take the form of entrenched norms, which might evolve into customary law, or ratified treaties, that is, conventional law. Until arguments are made, we may have no particular reason to choose one way or the other between procedural and substantive constraint. On the one hand, there is a sense in which any procedure must presuppose a substantive norm: which EMAs ought to be approved by the procedure? The ones that satisfy the necessary conditions. Which necessary conditions? The ones specified by the relevant norm. We do not, in other words, want what John Rawls called ‘a pure procedure’, a procedure such that whatever outcome it reaches is accepted simply because it is the outcome that was reached by the proper procedure. (Or if so, someone needs to describe a procedure that would deserve such great authority over life and death at a grand scale.) On the other hand, one method for generating widely shared norms is a reasoned process for the consideration of all relevant cases in a way that generates consistent guidelines. This is why the current secrecy of the main deliberations of the UN Security Council is such a serious (self-inflicted) handicap: no Council member has to spell out reasons in a forum in which they can be rigorously and publicly examined for hypocrisy and deception. Consistent use of something like the Buchanan/Keohane mechanism seems more promising than current Security Council practice, not for any enforcement power it might or might not develop, but for the possibility of generating clearly formulated precedents that might help to constitute a kind of international ‘public reason.’ 57

55 Unfortunately for those attempting this particular maneuver, execution and torture of all prisoners is prohibited whether they are lawful combatants or not—see 1977 Protocol I to the Geneva Conventions of 1949, Article 75, ‘Fundamental Guarantees’. 56 One could argue that the requirement, currently flouted as a matter of policy by the US government among others, that the names of everyone held must be submitted to the ICRC is an important, if less than entirely effective, procedural bulwark against both ‘disappearances’ and torture. 57 John Rawls was famously trying in The Law of Peoples to make sense of what he called ‘international public reason’—see Henry Shue, ‘Rawls and the Outlaws’, Politics, Philosophy & Economics, 1: 3 (2002), 307–23.

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This yields an odd mixture of the unilateral and the multilateral. EMAs might continue to be conducted unilaterally in the sense that there might be no multilateral organization whose advance authorization was mandatory. On the other hand, EMAs would be morally required to accord with widely multilaterally accepted principles. It would be procedurally permissible for a state to decide on its own, without approval of any international body, to conduct an EMA, but the EMA would be justified only if it did in fact comply with multilateral norms regarding EMAs: some set of well-thought-out conditions (to which this chapter aspires). This is, if you like, substantive multilateralism, not procedural multilateralism. If someone can think how to make the norms enforceable—if the Buchanan/Keohane mechanism, for instance, could actually impose penalties for norm violation—all the better. But the international arena contains influential norms for which there are no enforcement mechanisms of any kind. For ‘substantive multilateralism’ to work, major states would need to feel a responsibility to protect their security only in ways that accorded with widely shared norms, such as appropriate necessary conditions for EMAs. Perhaps they would not sense this responsibility, but if not, it seems to me we still have to say that EMAs conducted entirely at the preference and whim of the most powerful, like the Anglo-American invasion of Iraq in 2003, are far too dangerous, destructive, and arbitrary to be tolerated, if they can be prevented. In other words, the powerful states face a dilemma: they can insist on engaging in whatever EMAs they please, which is dangerous and unruly behavior of a kind that those who believe in the rule of law will always oppose, or they can commit themselves to engage in only EMAs that can be justified by appeal to reasons that are in accord with ‘the decent opinions of mankind.’ 58 The latter choice means committing themselves to formulating and establishing reasoned precedents and taking precedents, once widely acknowledged, very seriously. This is a lame requirement—is it so lame as to be worthless? One is tempted to say something stronger, like ‘they must abide by established international norms,’ but norm change cannot and should not be excluded. Perhaps all that this amounts to is a requirement for governments to provide good faith reasons to people outside their own country, not to mention the standard democratic requirement not to deceive or manipulate their own citizens. Nevertheless, as weak as it sounds, a serious requirement to explain use of force to the rest of humanity on grounds that they might find compelling, strikes me as a step forward from where we are. During the 2004 US Presidential Debates, George W. Bush expressed sneering contempt for any suggestion that the US government owed anyone else in the world any explanation for anything they did (including a military conquest and occupation of another society). I think we can safely say that 58 Philosophers will recognize this as a somewhat Scanlonian requirement for state action at the international level. It embodies an attempt normatively to reinforce any tendency of the kind hypothesized by Wheeler already to be developing: to restrain state action to what can be grounded in a kind of normative consensus, or ‘international public reason’.

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such contemptuousness is vicious and that one necessary condition for a justified EMA is that it should set a precedent that can be justified by appeal to general principles that are widely accepted among nations. In other words, the EMA must be substantively multilateral—in accord, if you like, with international public reason. This will provide it with moral authority derived from its consonance with internationally shared values. Substantive multilateralism would, provided its terms were clear, also provide systemic stability by avoiding Schelling’s vicious cycle of fear of surprise attack. What we have no reason to be confident that it would provide is accuracy in the assessment of threats, the second of the three possible purposes examined in this section. Overall, then, yes to stability and authority, but no to accuracy. Since, however, I remain to be convinced that any procedure, including the transparent Buchanan/Keohane accountability mechanism and the secret Security Council deliberations, would do very much to deal with the deep inherent problems of assessing threats that are not imminent, I see for now no form of procedural multilateralism that ought to be preferred over substantive multilateralism.

9.5. OVERALL CONCLUSIONS

9.5.1. Theory Here, then, are some tentative necessary conditions for a justified early military action, which I have discussed above: 1. It must be limited to the effective elimination, including the prevention of the return, of the danger that justifies it; 2. It must be undertaken only when military action is urgent; 3. It must be based on well-verified, solid intelligence collected by a highly competent agency; and 4. It must be substantively multilateral, that is, based on principles justifiable on the basis of reasons broadly acceptable internationally. This is by no means a complete set of necessary conditions. It is obvious, for example, that something must be said about the kind of danger that can justify early military action. Must it, for example, involve WMD? If so, why may a state possessing weapons of mass destruction attack another state or a non-state actor for possessing them? I have a position on this, but it unfortunately is not a simple matter, and space does not remain here to lay it out in any convincing way. 59

59

I plan to take it up in a manuscript with the working title, Perpetual War.

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9.5.2. Practice The list above is almost surely incomplete and utterly minimal. Yet even these four conditions seem extremely difficult actually to satisfy. In this respect, justifiable preventive attack (single strike or war)—justifiable EMA—seems a lot like ‘justifiable torture’: much easier to imagine in the abstract than to carry out in practice. Can I imagine a hypothetical case? Yes. Have I seen a real case? No. Do I expect to? Not really. But we could establish a process to review systematically and impartially the asserted cases.

Index Abu Ghraib 230 abuse and error 128, 130–1, 134 accountability 92, 108, 134, 135, 237, 238, 241, 242 creation and maintenance of a regime 133 ex ante/ex post 132 international 104, 136 multilateral 21, 132, 138, 236 national 104 ‘Accurate Assessment’ 237 Acheson, Dean 44, 51, 61 Ackerman, Bruce 47 act-consequentialism 16, 17, 148, 149, 206, 207 epistemological critique of 154 active preparation 13, 167, 168, 193 ad hoc coalitions 91 Additional Protocols 182 Adenauer, Konrad 51 n. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) 181 n. Aerenthal, Alois L. von 31, 32 aerial delivery systems 187 Afghanistan 76, 98, 199, 202 forcible regime change 94 Africa 182 aggression 1, 79, 86 n., 100, 121, 140, 177, 192 active 165 actual 215 clear and unambiguous acts of 147 commitment to 127 conduct as 84 country conspiring to commit 138 determining whether particular force is 83 deterrent to 35 first use of force is usually 3 future 139, 215 imminent 171 n. justified 14–15 large-scale 124 military 195 military force aimed at prevention is not 87–8 objectively wrong 164 n. opportunity to forswear 216 possible or potential 80, 83, 84 preventive war equated with/argument for 116, 118, 132

prior to striking a blow 5 punishment for 213 retaliation and 71, 73, 83 unjustified 168 unlawful 182 wars of 33 well-established acts of 83 wrongful 165 aggressor-defender paradigm 15, 16 Agreed Framework 56 air attack 33, 35, 94 Air Force officers 43 air strike 49–50, 55, 177, 223 Airakson, T. 163 n. Albertini, Luigi 46 n. alcohol 156 n. Allers, Ulrich S. 15 n. alliances 25, 152, 170 Austro–German 29, 30–1 Austro–Russian 23 Allison, Graham 6 al-Qaeda 76, 182, 187, 202, 220 Iraq turned into recruitment poster for 219 ambiguous laws 151–2 American Enterprise Institute 90, 111 American War Plans, 1919–1941 (ed. Ross) 63 n. Amnesty International 240 n. anarchy 111, 170, 183, 185, 235, 241 Anderson, Irvine 61 n. Anderson, Maj.-Gen. Orville 1 Andrew, Christopher 230 n. Anfal campaign 187 Annan, Kofi 20, 89, 91, 92, 101–4, 106 n., 108 n., 109 n. Anscombe, G. E. M. 237 n. anthrax 187, 191 anticipating an aggressor 2, 36 anticipatory action 186 anticipatory retaliation 79 Aquinas, St Thomas 72 n., 161 n., 181 n. Arab hatred 219 Arab–Israeli War (1967) 35, 145 Arab League 48 n. Arbatov, Alexei 227 n. arbitrary arrests 189 Ardennes 34 Arend, Anthony Clark 189 n., 190, 197, 199 Arendt, Hannah 223 n.

248 Argentia 62 n. Argentina 189 Ariga, Nagao 28 n. Aristotle 162 n., 234 n. armament strategies 152 ‘Army after next’ study (1995–7) 37 Asia-Pacific 59 n. Aspin, Les 95 assassination 32, 48, 147 assaults 185, 195 asymmetric warfare 177–8 Athenians 6, 116 Atlantic 60, 64 atomic weapons 40, 44, 198 Audi, R. 208 n. Auerstädt 24 Augustine, St 181 n. Austerlitz 24 Australian Department of External Affairs 62 n. Austria 26, 32 Austria-Hungary 29, 31, 39 Serb challenge to 32 authority: lack of structure 185 moral 241, 245 right 241 authorization 68, 91, 92, 101, 105, 110, 113, 123, 124, 145 n. legitimate 107 multilateral 20, 232–45 avoidable catastrophe 10, 18, 19 ‘axis of evil’ 196 Bacevitch, Andrew 95 n., 198 Bacon, Francis 117 bad-faith abuse 172 ‘bad practice’ objection 128–31, 134, 199–200 balance of consequences 107, 110, 147 long-term 146 balance of power 25, 63, 123, 150 effective 149 Bales, R. E. 207 n. Balkan League 46 n. Balkans 29, 31, 32 Russia and 46, 67 Ball, George 49 ballistic missiles 8 n., 231 Banda, Maria 19 n. banned weapons 187–8 Barber, Benjamin 111 n. Barnett, Richard J. 4, 241 n. Bartram, Darin 48 n. Bay of Pigs invasion (1962) 94 Begby, Endre 223 n. Beisner, Robert 51 n.

Index Beitz, Charles R. 16 n., 143 n., 180 n. Belgium 32 Belgrade 181 Berchtold, Leopold 32 Berlin 8, 41 n., 52 Bernstein, Barton 43 n. Bertman, M. A. 163 n. Best, Geoffrey 33 n. Bethmann-Hollweg, Theodor von 32 Betts, Richard K. 39 n. Bin Laden, Osama 219 biological agents 188 biological destiny 199 biological weapons 13, 40, 86 n., 102, 112, 187, 216–17 proliferation of 114–15 Bismarck, Otto, Prince von 26–7, 29, 39 Blainey, Geoffrey 148 n. Blair, Tony 144 blinding laser weapons 187, 188 Blix, Hans 219 blockade 47, 49, 50, 68 no right under international law to impose 51 n. bodily integrity 184 Bohlen, Charles 43 Bolshevism/Bolshevik Revolution 34, 46 bombing campaigns 179 Booth, James 69 n. Bosnia-Hercegovina 31, 32, 111, 177 Muslims 187 Bouilhet, Alexandrine 41 n. Boulanger, Gen. Georges 29 bourgeoisie 34 Boutros-Ghali, Boutros 104 n. Bowett, D. W. 3 n. Brahimi Report (2000) 104 Brandt, Richard 206 n. Bratman, Michael 191 Brazil 184 Britain 28, 58 n., 63 n., 118–19, 235 basic interests on the line 67 preventive war policy 143 urged to expel French from Canada 93 warned by Germany against interfering in European affairs 32 see also ‘Four Policemen’ Brooks, Rosa Ehrenreich 179 n., 182 n., 183 n., 195 Brownlie, Ian 3 n., 144 n. Bryan, Zahler 9 n., 228 n., 232 n. Buchanan, Allen 9 n., 20, 21, 22, 86–7, 92 n., 127 n., 134 n., 135 n., 143 n., 174, 199–201, 207 n., 215 n., 217, 218, 221 n., 224 n., 229 n., 232 n., 235–6, 237, 238, 239, 240, 241, 242, 243, 244, 245 Buhite, Russell D. 43 n.

Index Bull, Hedley 170 Bundy, McGeorge 47 n. bunker-busters 227 burdens of judgment 151 Burke, Edmund 149, 150 Burke, William 93 Burma 189 Burr, William 8 n., 47–8, 94 n. Bush, George H. W. 54 n., 95, 96, 202 Bush, George W. 3–4, 6, 8, 9, 11, 38, 40–1, 42, 47, 51, 54 n., 55 n., 56, 57, 60, 65, 66, 69 n. 90–1, 92–100, 111–12, 114, 144, 145, 149–50, 160 n., 161, 174, 175, 202–3, 214, 216–17, 219, 220, 221, 222, 226, 227, 228, 231, 244–5 BWC (Biological Weapons Convention) 187 Byers, Michael 144 n., 145 n., 151, 158 Byman, Daniel 199 Cadogan, Sir Alexander 62 n. Cain and Abel 179 Cambodia 195 Canada 7 n., 18, 118–19 Britain urged to expel French from 93 capitalism 34 Carnegie Commission on Preventing Deadly Conflict 103 Caroline doctrine 4, 119, 145, 162–3, 171 n. ‘carrying out orders’ 140 Carter, Ashton B. 53 n., 55 n., 56, 57, 59 n. Carter, Jimmy 56, 198 Carthage 89–90 Casey, R. G. 62 n. Casey, Steven 43 n. Cassese, Antonio 3 n., 144 n. Castlereagh, Robert Stewart, Viscount 59 n. Castoriadis, Cornelius 113 Castro, Fidel 94 casualties 35, 146, 224 mass 106, 190 preventing 106 casus belli 173 catastrophe 11–14, 102 harrowing 222 inevitability and 9–11 natural 176 responsibility to prevent 14–20, 105 see also avoidable catastrophe categorical imperative 200 n. Catholic doctrine 161 n. CCW (Convention on Conventional Weapons) 187 Chad 240 Chang, Gordon 47 n. Chayes, Abram 50 n. Chechen rebels 58

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chemical weapons 102, 112, 187, 188, 216–17 proliferation of 114–15 Cheney, Dick 91, 222, 226, 227, 228 n., 231 Chile 189, 195 overthrow of democratically elected government 199 China 57, 60, 62, 235 foreign policy 59 n. Japan forced to choose between war and capitulation on 61 nuclear capability 47, 48, 93–4 nuclear North Korea not wanted 58 Taiwan policy 58 see also ‘Four Policemen’ choices 210 political 2 Christensen, Thomas 58 n. Churchill, Winston 43, 60, 67–8 CIA (Central Intelligence Agency) 47 n. Cicero 149, 162, 163 civil rights 186, 220 civil war 101, 102, 182, 183 civilian morale 34 clairvoyants 165 clandestine groups 91 clans 182 Clark, Ann Marie 240 n. Clark, Gen. Wesley 38 ‘clash of civilizations’ 111 class war 199 Clausewitz, Carl von 7, 9, 24–5, 28, 147, 148, 230 Clinton, Bill 8, 42, 54, 55–6, 57, 66, 94, 95, 96, 111, 224 n. Coady, C. A. J. 89 n., 242 Coates, A. J. 15, 242 coercion 44, 71, 108, 110 retaliation against 78 Cohen, Avner 211 n. Cold War 36, 38, 39, 41, 59, 233 n. early 42–6 first strikes justified 150–1 issues at the heart of 51 most intense phase of 53 political agreement rare during 122 political context of 37 preventive nuclear and conventional war possible responses to 93 UN roles 104 US policy 44 collateral damage 138, 169, 176, 179 taking extraordinary care to avoid 177 collective action 19, 106, 212 authorized 121 legitimacy gained through 113 preventive, better alternative than 124–5 Colombia 182

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Index

commonsense principle 208 communism 34, 46, 115 n. way of settling things with 43 n. compliance 89, 155–60 Concert of Europe (1815) 59 n., 123 conduct 84, 105, 108, 117, 119, 242 civilizing 154 n. constraints on 225 illegitimate 121, 167 conformity 191 Congress of Vienna (1814–15) 59 n. Conlon, Paul 224 n. conquest: no medium between safety and 93 perpetual and brutal 89 conscientious individuals 139 conscripts 139, 176 consequentialism 12, 21, 128–9, 130, 144, 161, 166, 170, 171 n., 200 n., 203, 204, 217 cases where humanitarian wars meet 214 critique/view of 18, 210, 216, 218–21 debilitating epistemological problems 143 disutility of 145–60 just war theories conflict with 213 moral theory 206–7 problems for 207–12 proponents and opponents of 18 see also act-consequentialism; rule-consequent- ialism conspiracy 13, 135, 136, 137 invoking the concept of 174 lethal aggressive 141 military not involved in 139 public, broad-based 138–9 theory of lost innocence 190–2 wrongful 142 Conspiracy Paradox 166–70, 174, 192–6 containers 229 containment 41, 44, 91, 92 conventional weapons 187, 188 no justified preventive war against 218 Cooke, Adm. Charles M. 63 n. Copenhagen 28 Coppieters, Bruno 33 n. Corinth 90 Cortright, David 224 n. cost-benefit analysis 154, 155 counterfactual judgments/consequences 147, 158 counterproliferation programs 56–7 counterstrike weapons 79 covert operations 38, 190, 199 Crawford, Neta C. 4, 7 n., 16 n., 20, 21, 22, 72 n., 86 n., 97 n., 119 n., 213 n., 214, 215, 217, 232, 233 n., 234 n., 235 n., 237, 241 n., 242

crazy rhetoric 190 crime 162 n., 165, 182 conspiracy to commit 166 inchoate 191 releasing those bent on 191 stopping it early 191 talking 192 see also organized crime crimes against humanity 19, 104 preventive uses of force justified to forestall 109 criminal law 84 n., 165 criminal organizations 156 n. criminalization 156 n., 191 conspiratorial planning 192 critical infrastructure 99 Cuba 189, 195 attempted overthrow of Castro regime 94 missile crisis (1962) 8, 47–52, 68 customary law 198, 243 argument 145 international 158, 171 n., 197 CWC (Chemical Weapons Convention) 187 Czechoslovakia 48 n. daisy-cutters 187 Dallek, Robert 61 n., 62 n., 64 n. Danish fleet 28 Danner, Mark 174 n., 223 n., 236 n. Darfur 240 death 102, 173, 184, 206, 210 aesthetics of 188 aggressor 72 n. intended 161 n. large-scale 101 unintended 161 n., 176 deception 236 decision-making 158 n., 235, 241 domestic institutions 134 flawed, attaching costs to 133 procedural requirement for 107 responsible 133 superior 118 under uncertainty 211 well-designed institutions for 21, 131–2 deep morality 18, 203–6, 217 public rules versus 203–6 defeasible heuristics 210 defeater condition 155 defense 1, 3, 41, 183 army not just for 138 distinction between attack and 33 excessive 82 n. forward 98 limited to response to impending attack 119 national 203

Index political 34 principal justification for waging war 88 traditional justifications of 86 n. wars of 33 see also self-defense Defense Department (US) 57 see also DoD Dictionary defensive action 160 necessary 161 defensive response 5 defensive war 7, 16, 72 justified as last resort 69 defensive weapons acquisition 73 De Gaulle, Charles 43, 51 delayed action 77, 84 democracy 112, 202, 220 building 104 enlarging of 111 free-market, ‘exporting’ 94 mission to spread to Middle East 100 promoting 103 democratization 90, 96 Deng Yong 59 n. Denmark 27 deontologists 203, 204, 210, 211 deployment 32, 37 disruption of 36 not complicated by need to work with allies 38 Des Forges, Alison 238 n. despotism 189, 197 destruction 90, 137, 182 death and 173 incalculable 209 innocent 194 destruction mass 187, 188, 220 vast 233 see also WMD detentions 189 deterrence 25, 35, 37, 41, 91, 92, 226 cannot be assured of working 97 mutual 195 nuclear 36 stabilizing 152 traditional justifications of 86 n. deterrence optimism 18 n. De Vattel, Emrich 118 n. Digital National Security Archive 51 n. Dinerstein, H. S. 35 n. Dinstein, Yoram 3 n., 144 n., 163 n. diplomacy 43, 158 skilled 195 dirty-hands paradox 180 dirty wars 189 disappearances 189, 243 n. disarmament 152 enforced 59 n.

251

disaster avoidance principle 211 discrimination 105 combatants and noncombatants 119, 124 maximum force permitted by 177 disenfranchisement 184 division of labor 133 DoD Dictionary of Military and Associated Terms 6, 11–12 domain awareness 98, 113 Dominican Republic 94 double-effect doctrine 72 n., 137, 161 n., 169 Douhet, Giulio 33, 35 Dowling, Walter C. 51 n. Downing Street Memorandum (2002) 174, 192 Driver, Julia 221 n. drones 178, 182 drug-smuggling 182 Dulles, John Foster 8, 35, 45 dum-dum bullets 187 duress 162 n. Dutch East Indies 60 Eastern Europe 146 n., 209, 211 Eaton, Anne 221 n. economic well-being 214, 215 Economist, The (US edition) 58 n. economy of force 36 Egypt 145, 215–16, 217 Eisenhower, Dwight D. 8, 42, 44–5, 46, 66 Ellings, Richard 58 n. El Salvador 195, 199 Elshtain, Jean Bethke 197 n. EMAs (early military attacks) 228, 233–40, 242–4 justified 222, 223, 225 n., 226, 227, 231, 245 embargoes 60, 62, 124, 125 emotional abuse 147 emotions 71 engagement: global 99 rules of 176 Entente (France, Russia, and Britain) 32 environmental degradation 102 epistemological problems 17, 143, 145, 147, 148, 149, 154, 155, 158, 159, 170 Erfurth, Waldemar 29 n., 34–5 escalation 84 n., 148, 154 ethical bedrock 184 ethics: military 177, 180 political 74 war 154, 160 ethnic cleansing 19, 104, 107, 110 European Court of Human Rights 181–2 European Union 147

252 Evans, Gareth 3 n. Evans, Mark 86 n., 97 n., 213 n. exceptional permissions 157, 158, 159 ExCom 47, 49, 50 executions 189, 242, 243 n. export controls 115 expropriation 184 failed states 111, 182, 183 ‘failure to discriminate’ argument 136–42 fairness 140, 141, 142 ‘false precedent’ risk 130 fascism 33, 34, 199 fear 1, 2, 116, 170 artificial 163 n. credible 119 deterioration in military balance 36 extreme 163 freedom from 20, 89, 102 ‘mere’ 81 n., 82 misjudgment due to 73 mutual 232, 233, 234, 235, 241 preventive war initiated largely out of 24 psychological 163 reciprocal 233 vicious cycle of 245 feasibility 133–5 Finnemore, Martha 241 n. first strike policy 35, 36, 41 aggressive 71 illegitimate 167 justified 145, 150 legitimate 167 prohibition against 233 Fischer, Fritz 32 Fisher, John A. (Jackie), First Sea Lord 28 Fletcher, George 75, 76–7, 162 n. Flory, Peter C. W. 227 n. Foot, Rosemary 48 n. Ford, Gerald 54 n. Foreign Office (UK) 52 n., 62 n. foreign policy 7–9, 20, 26, 113, 197, 222 domestic policy inseparable from 95 militarized 38 preemptive pressures on 33 preventive war and 39, 40–68, 94 revolution in 98 forestalling enemy action 36 forfeiture-of-right theory 12, 166, 173, 174, 194 Forman, Shepard 232 n. Förster, Stig 27 n. Foster, William 94 Fotion, Nick 33 n. ‘Four Policemen’ 59 n. Fox, Henry S. 223 n. fragmentation weapons 187

Index France 23, 26, 27, 29, 32, 58 n. British attack on fleet (1940) 67 international order would keep disarmed 59 n. preemption and preventive-war doctrine 116 Russia allied with 30 see also De Gaulle; Poincaré Franke, Hermann 25 n., 34 n. Franklin, Benjamin 7 n., 93 Franz Ferdinand, Archduke of Austria 32 Fravel, Taylor 59 n. Frederick II, the Great, king of Prussia 23, 24, 25, 27, 28, 29, 30, 34 free trade 111 French North Africa 67 French Revolution 146 Friedberg, Aaron 58 n. Friedman, Thomas 111 Frum, David 99 Fulbright, J. William 51 n., 68 Gaddis, John Lewis 7 Gallucci, Robert 54 n., 55 n., 56 n., 58 n. gang war 182 Garthoff, Raymond 48 n. Gasser, Adolf 32 Gehring, Verna 178 n. general staffs 26, 27, 28, 29, 30, 32 generalization arguments 199–201 genetically modified virus 229, 230 Geneva Conventions (1949) 182, 199, 243 n. genocidal attack 186, 190 genocide 19, 102, 107, 110, 186–7 expanded 146, 147 multiple 241 planned, prevention of 124 preventing 109 Security Council failure to act against 238 Genocide Convention (1948) 104, 186 Gentili, Alberico 1, 4, 6, 24, 89, 116–17, 120, 149 Georgia 58 Germania 197 Germany 26, 27, 39, 63 building up military power 63 condition of army (1938 and possibly 1936) 139 costs of war against 146 exposed to forceful exponent of preventive war 31 grave threat to American security 64 Handbuch der neuzeitlichen Wehrwissenschaften (1936) 34 menace of two-front war 30 preemption and preventive-war doctrine 116

Index preventive war launched by 32 pursuit of alliance with Russia 30 Russia and 29, 30, 45–6, 52, 63 n. Serb challenge to 32 status of 51 successful defense against France 29 surprise and preemptive attack on navy 28 US heading toward war with 60, 61, 62 war planning of army (before 1914) 33 worst possible way to bring America into war with 65 see also Adenauer; Hitler; Moltke; Nazi Germany; West Germany; Wilhelm I; World War I; World War II Gert, Bernard 221 n. Gilbert, Paul 69 n. Glantz, David 36 n. globalization 110, 111 negative view of consequences of 112 Goltz, Colmar von der 28 Goodin, Robert 143 n., 211 n. Gordon, Joy 224 n. Gordon, Michael R. 227 n., 231 n. Graham-Brown, Sarah 224 n. Gray, Colin 38 n. great powers 17, 58–9 abusive 123 effective control over UN Security Council and use of force 122 nuclear weapons held by 115 Greece 90 Gregor, Mary 117 n. Grenada 94 Grossman, Lt.-Col. Dave 196 n. Grotius, Hugo 23–4, 74 n., 177 n. groupthink 191 Gruzalski, Bart 219, 220 Guantanamo Bay 219, 230 Guatemala 195 guerrilla struggle 182 Gulf War, see Iraq War (1990–1) Guyer, Paul 200 n. GWOT (Global War on Terror) 182 Haas, Richard 99, 224 n. Habsburg empire 32 Haeften, Hans von 32–3 Hague Convention (1907) 29 Haiti 94, 111 Hamel, William C. 43 n. Hamley, E. B. 28 Harkabi, Yehoshafat 36 n. Harsch, Joseph C. 35 n. Hart, Gary 38 Hart, Henry 197, 198 Hart, Adm. Thomas C. 60 n. Hartenstein, Peter J. 242 n.

253

Hawaii, see Pearl Harbor Hearden, Patrick 61 n. hegemony 63, 157 n. Heinrichs, Waldo 62 n. Hermann, David 31 n., 32 Hershey, Amos 25 Hersh, Seymour M. 227 n. high explosive 187 Hintikka, Jaakko 237 n. Hiroshima atomic bomb 187 Hitler, Adolf 25, 33, 34, 39, 64, 67, 147, 180, 188 n., 189 n., 210, 218 Hobbes, Thomas 66 n., 70 n., 115, 163 n., 170, 185, 193 Hobsbawn, Eric 146 n. Höffe, Otfried 200 n. Hogan, B. 162 n. Holloway, David 36 n. Holmes, Oliver Wendell 174, 185 Holmes, Robert 176, 177, 178–9 Holy Alliance 123 Hooker, B. 206 n. Horgan, T. 208 n. hors de combat 178 hostile intentions 172 hotspots 150, 151 Hötzendorf, Franz Conrad von 31, 32 Howard, Michael 7 n., 24 n., 147 n., 148 n., 230 n. Howe, Mark DeWolfe 185 n. Hu Weixing 59 n. human rights 132, 144 denial of 103 international 105 large-scale threat to 168 preventive war and 171–201 violations of 140, 168, 179, 240 n. humanitarian intervention 16, 19, 104, 105, 109 military 238, 239 targets of 189 Hungary 27 Huntington, Samuel P. 39, 111 hyperpowers 198 IAEA (International Atomic Energy Agency) 53, 54 IC (intelligence community) 230, 231 ICC (International Criminal Court) 192 n., 199 ICCPR (International Covenant on Civil and Political Rights) 179, 181, 182 n. ICISS (International Commission on Intervention and State Sovereignty) 18–19, 104–5, 108 n., 109–10, 240 n. ICRC (International Committee of the Red Cross) 242, 243 n.

254

Index

ideology 34, 172 dominant 123 favoring violence 190 national 198 IHL (international humanitarian law) 19, 107, 176, 179, 181, 187 n. illegality 75, 76, 118 exceptional 158 illegitimate conduct 121, 167 immanence condition 160, 166 abandoned 161 imminence concept 160–1, 163, 166, 215–17, 237 imminent attack 6, 86, 106, 120, 127, 135, 161, 190, 218, 229 first strike 167 limited right of preemption against 144, 145 overwhelming psychological necessity of facing 164 attack reaction to credible fear of 119 responses to 5, 80, 87, 121 threat of 5 unjust 166 war to stop 138 imminent threat 3, 104, 105–6, 107, 108, 115, 120, 142, 144, 149, 160, 215 actual 78 n., 97 adapting to 11, 160, 175 discerning the characteristics of 121 distant threats become 78 n. distinction between immanent and 92, 97, 116 lethal 142 manifest intent and active preparation to inflict harm in absence of 13 reducing or eliminating 119 response to 4, 5 right to preempt against 100 self-defense and 74 threats dealt with before they become 228 use of force against 85 Websterian conception of 5 impasse problem 17, 143 rule-consequentialism and 149–55 incendiary weapons 187, 188 indeterminacy 147, 152, 153, 154, 155, 237 India 150, 152 n. Indochina 60 industrialization 27 inevitability and catastrophe 9–11 infantry regiments 27 infectious disease 102, 106 inferiority 38 infidels 138 initiation of war 11

injustice 206 irreparable 88 social 179, 180 innocent actions 191 innocent obstacles 137–8, 139, 141, 142 insecurity 106, 113, 124, 179 complex 115 threat and use of preventive force increases 120 instability 151 institutional context 21–2 institutional settlement 197 insults 71, 84 n. insurgents 177 anti-American 219 intelligence 161, 190, 223, 232 accurate real-time 230 fiasco over 231 highly competent agency 229 inherently imperfect 231 precise 231 superior 205 superior capacity for gathering 122 well-verified, solid 22 intent to injure 167 intentions: hostile 172, 190 planning theory of 191 interdependence 110–11, 112 international law 25, 34, 50, 74, 87–8, 130 breached 28 compliance effects and development of 155–60 conduct in war should promote 117 contravened 71, 145 current US fear and contempt of 199 customary 158, 171 n., 197 dominant traditions of 105 endorsement of 38 enforcement of 88, 202, 213, 214, 220, 221 exceptional status within 17 genocidal attack 186–7 indifference or hostility to 199 no right to impose blockade under 51 n. permissibility of preemptive war in 126 positivist or conventionalist conception of 198 preventive force necessarily violates 121 self-defense under 47, 144, 145, 171 n. serious violations of 19 states with no regard for 96 violation of 237 see also IHL international peace 124, 125 action to secure 123 authority to take action against threats to 197

Index desire to promote 116 measures to maintain 100, 101, 108, 145 n. military force to preserve/maintain or restore, 104, 108 preventive force to maintain 145 n. threats to 91, 106, 109, 110, 113, 114 UN military action to restore 122 international relations 25, 42, 66, 117, 149, 241 standard assumptions of theory 152 intervention: coercive 110 humanitarian 16, 19, 104, 105, 109 kind of legal basis for 58 military, justified 19 preventive 194 unjust 195 intuitions: distorted 213 moral 178 n., 180, 181, 208 invasion 32, 33, 48 n., 49, 68 Bay of Pigs (1962) 94 destroyed power to resist 127 German-Soviet Union (1941) 62, 63 impending 224 preventive, immunity to 192 unjust 194 see also Iraq War (2003) IRA (Irish Republican Army) 199 Iran 20, 49, 192, 199 centrifuge plant at Natanz 227 Iraq 20, 48, 96, 98, 111, 113, 177, 231–2 chemical and biological agents 217 civilian casualties 224 evidence of weapons programs 192 forcible regime change 94 intelligence fiasco 231 Israeli bombing of nuclear reactor 94, 215, 218 ‘mother of all bombs’ developed for use in 187 no clear connections between al-Qaeda and 220 no military threat from 219 turned into recruitment poster for al-Qaeda 219 UN response to occupation of Kuwait (1990–1) 122 see also Iraq War; Saddam Hussein Iraq War (1990–1) 37, 143 n., 202 Iraq War (2003) 108, 143, 154, 202–3, 219–20, 222 authorization of attack 235 damage wrought on international institutions by diplomacy in lead up to 158 last resort criterion 173

255

US invasion 22, 85, 90, 174, 193, 194 n., 195, 199, 223, 224–5, 240, 244 Irish-American financial support 199 Irresponsible Act objection 129, 131–2, 134 Isaiah 179 Islam 219 isolationism 95 Israel 35, 94, 145, 150, 192, 196 n., 216, 217 bombing of Osirak nuclear reactor 215, 218 Italy 29, 31 Jackson, Andrew 7 Janssen, Dieter 94 n. Japan 2, 10, 39, 64, 65, 150 economic strangulation and geopolitical imprisonment 23 move into southern Indochina 60 nuclear probability 58 US policy toward 62 war with Russia (1904) 28, 30 Jarvis, Anthony P. 238 n. Jeismann, Karl-Ernst 24 n., 26 n., 27 n., 30 n., 34 n. Jelavich, Barbara 46 n. Jena 24 Jervis, Robert 66 n., 120 Jesus Christ 181 n. Jews 209 Johnson, James Turner 33 n. Johnson, Lyndon B. 8 n. Johnston, Alastair Iain 58 n. Joint Committee on the Investigation of the Pearl Harbor Attack (1946) 60 n. Judea 197 judgment 151 bad 237 evaluative 171 n. faulty 237 intuitive 231 legal validity 198 negative and minimal 155 practical 154 refined and sophisticated 240 Julius Caesar 28 jurists 28, 149 jus ad bellum 154, 155, 180, 213 jus in bello 140, 154 n., 176, 180 n., 213 legal embodiment of 181 symmetrical rules 177 jus post bellum 213 just cause 15, 140, 213–15 just war 194 necessary conditions rooted in 119 preemption and preventive war in tradition of 116–18 preventive force necessarily violates 121

256

Index

just war (cont.) theorizing 69, 74, 85 n., 86, 87, 88, 105, 126, 130, 133, 139–40, 154, 155, 212–17 violating prohibitions 123–4 justification 10, 12, 14, 21, 51, 70, 118, 126–42, 172 n. argument for 3 consequentialist 155 defensive 166 departure from common morality requires 181 double effect 72 n. ethical 33–4 implied 77 legal 33, 143 n., 158 moral 83 necessary condition for 155 no other possible 16 n. potential 6, 155 prima facie 155 principal, for waging war 88 self-defense 74, 81–5, 86, 87, 164, 171 n. twin-born 222–7 unilateral and lawless use of force, with or without 91 justum bellum 176 Kahn, Paul 178, 188 Kamp, Karl-Heinz 41 n. Kant, Immanuel 111, 117, 118, 121, 200 n., 241 n. Kanter, Arnold 54 Kaplan, Robert D. 111, 115 Kashmir 152 n. Kashnikov, Boris 33 n. Kavka, Gregory 211 n. Kaysen, Carl 59 n. Keller, William W. 230 n. Kellogg-Briand Pact (1928) 33, 116 Kennan, George 43, 64–5 Kennedy, John F. 8, 42, 46–53, 66, 68, 93–4 Kennedy, Robert 47, 49, 50 Keohane, Nan 221 n. Keohane, Robert O. 21, 92 n., 110–11, 127, 130, 132, 133, 134, 135 n., 136, 138, 141, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245 Kessel, Eberhard 24 n. Kimmel, Adm. H. E. 62 n. Kissinger, Henry 48 n., 59 n. Klare, Michael T. 4 n., 38 n. Kloster, Walter 26 n., 27 n., 30 n. Klotz, Audie 125 n. Konrad Adenauer Foundation 41 n. Korea 43 see also North Korea; South Korea Kornbluh, Peter 4 n., 38 n.

Kosovo 171 n., 177, 181 Kronenbitter, Gunther 31 n. Kurds 187 Kutz, Christopher 180 n. Kuwait 96, 122, 192 Lake, Anthony 96 Lake, David 59 n. Lambi, Ivo Nikolai 30 n. Lambroschini, Charles 41 n. Lamech 179 land mines 187 Laos 195 large-scale attacks/killing 19, 107 US largely immunized from 188 n. warding off 193 Larsen, Jeffrey 69 n. last resort 69, 81 n., 107, 120 n., 121 n., 135, 138, 173 preemption must be 119 Latin America 38 launch-on-warning strategy 233 n. law enforcement 191, 202, 213, 214, 218, 220, 221 agencies 165 law of conspiracy 135, 136, 141, 166 lawlessness 91, 241, 242, 243 laws of war 25, 143, 204 Lebensraum 138 Lee, Stephen 211 n. Lee, Steven 136 n. LeFeber, Walter 93 n. legality 28, 108, 121, 145 legitimacy 58, 92, 93, 106–7, 108, 109, 116, 121 gained through collective action 113 UN may lose 123 unique 91 Lehmann, Nicholas 99 n. Leninist theories 199 Leonhard, Robert 37, 38 Lethal Virus case 127, 128, 140, 141, 217, 218, 229 n. Lex Rhodia 90 lex specialis 181, 182–3 liability to harm 164, 165, 168 liberty 112 preserved 149, 150 right to 179 Libya 195 Liddell Hart, Basil 33, 35 Lieber, Keir 227 n. life chances 101, 102 like-minded states 123 limited wars 37 Liptak, Adam 178 n. LOAC (law of armed conflict) 176

Index Locke, John 185, 193, 194 Lockhart, Ted 211 loggers 184 Lopez, George A. 224 n. Luban, David 3, 4 n., 9 n., 12, 13, 14, 16 n., 17, 18, 76 n., 144, 149–50, 151, 152, 153, 156–7, 160 n., 163 n., 167–8, 169, 171 n., 180 n., 181 n., 186 n., 206, 215 n., 216 n., 220, 226, 232–3, 235 n., 237 Lutz, Hermann 32 n. Luxemburg 26 Lynn, Laurence E. 9 n. McCone, John 47 n. Macedo, Stephen 143 n., 221 n. Machiavelli, Niccolò 24 McMahan, Jeff 18, 126, 127, 128, 130, 140, 143 n., 165 n., 171 n., 173, 174, 177, 178 n., 190, 193 n., 195, 204, 211 n., 217 n., 221 n. Madrid 187 mafias 182, 184 Malone, David M. 232 n. Manchuria 28, 30 Manegold, Catherine S. 89 n. maneuver warfare 36, 37, 39 manifest intent 13, 193 manslaughter 73 n. Marcus Antonius 149 Marder, Arthur 28 n. Marshall, Gen. George 63 n. Martin, Tony 73 n. Mason, E. 206 n. mass armies 27 massacre 239 n. material harm 78, 84 Matthews, Lloyd J. 177 n. maximin principle 211 May, Ernest R. 8 n., 49 n., 51 n., 52 n., 68 n. mediation 101 medieval law 162 medium-range missiles 191 Meet the Press 54, 228 megalomaniacal rulers 190 mental illness 147 mercenary troops 182 Mers-el-Kebir 67 Metternich, Klemens, Prince von 59 n. Middle East: democratization of 90, 100 oil 198 militarism 180, 198 military force, see use of force military policy 98, 197, 198 military supremacy 90 military unpreparedness 23 Mill, John Stuart 211 n.

257

Miller, D. E. 206 n. Minear, Larry 224 n. minimum force 168, 177 minorities 140 Minority Report (movie) 165 Missile Attack case 127, 128, 137, 140, 141, 218 ‘mission creep’ 104 mistrust 170 Mitchell, Gordon R. 230 n. mitigation 158 MOAB (massive ordinance air blast bomb) 187 mobility 36 mobilization 33 bomber strike to disrupt ground forces 33 disruption of 36 focus on 32 national security 99 speed of 28 telltale signs of 35 Molotov, V. M. 59 n. Moltke, Helmuth von 26, 29, 30–1, 32 Monroe doctrine (1823) 94 Moore, Barrington 10 n. moral certainty principle 211 moral dilemmas 177 moral equivalence 196, 199 moral liability 166 moral theories 138, 139–40, 143, 161 moral wrongness 203, 204, 210, 211, 212, 214–15, 216, 217, 219, 220 morality 28, 82 n., 100, 140, 169, 175–6, 177, 178, 186, 211 common 181, 183 deep 18, 203–6, 217 uncertainty and 185 Morgan, Patrick 59 n. Moritz, Albert 30 n. Moroccan crises (1905/1911) 30, 32 Moscow Test Ban Treaty negotiations (1963) 47 Mueller, John 224 n. Mueller, Karl 224 n. multilateral action 111 multilateral institutions 133, 134 multilateralism 21 debates about 232 procedural 22, 244, 245 substantive 22, 244, 245 murder 146, 165, 177, 184 mass 13, 100, 114 systematic 209 unlawful aggression bordering on 182 Muslims 187 mutual assurance 152 mutual jeopardy 177, 178, 195

258

Index

mutual suspicion 195 Mytilene 6 Nagorno-Karabakh 111 Napoleon I Bonaparte, emperor of France 24, 25, 200 Napoleon III, emperor of France 26 Napoleonic warfare 27, 196 n. narcotics-conspiracy statutes 192 n. Nardin, Terry 238 n. Natanz 227 National Defense Strategy of the United States (2005) 199 national liberation wars 182 national self-determination 31 National Socialism 147 see also Nazi Germany NATO (North Atlantic Treaty Organization) 36, 177, 181 natural resources 182 Naveh, Shimon 36 n. Nazi Germany 64, 146, 208, 210 horrific price to pay for stopping 209 hostilities against Poland (1939) 33, 211 necessary conditions 222, 223, 225, 226, 227, 229 necessary force 82 necessity 98, 100, 166, 167 act justified by necessity must be limited by 223 maximum force permitted by 177 moral 138 psychological 144, 161, 162, 163, 164 self-defense as 119, 162–4 use of force 171–2 nn. Neff, Stephen C. 25 n., 28 n., 33 n. negotiation 92 Nelson, Horatio, Viscount 28 Neumann, John von 43 new security consensus 110–16 new wars 86 n. New York, see September 11 Newmyer, Jacqueline 24 n. Nicaragua 195, 199 NIE (National Intelligence Estimate) 231 nightmare scenarios 108–9, 116 Nir Eyal, 221 n. Nitze, Paul 44 Nixon, Richard M. 9, 48 no-first-use-of-force rule 172, 233 noncombatants 119, 121, 124 considerable risk to minimize harm to 140 guilty and threatening 204 non-intervention 19, 109, 110 non-nuclear status 56 non-proliferation 55 see also NPT

nonstate actors 86 n. Norman, Richard 83 n. normative realism 198 norms 83, 84, 85, 150, 234, 239 blanket 133 emerging 109 enforceable 244 entrenched 243 ethical 74 European 26 human rights 105 influential 244 international 67, 105 just war 87 legal 41, 71, 156 moral 156 nascent system of 157 non-intervention 91, 110 nuanced 133 prevention 151 prohibitory 243 self-defense 86, 87, 157 substantive 243 widely-shared 244 North Atlantic 60 North Korea 150 nuclear crisis (1993–4) 53–9 NPT (Nuclear Non-Proliferation Treaty) 53, 54, 56 n., 57 n., 115 NSC (US National Security Council) 44, 45 NSS (US National Security Strategy) 3–5, 11, 12, 13, 18 n., 95, 97, 112, 113 n., 143, 144, 149, 160, 163, 167, 186, 188 n., 190, 195 Bush doctrine articulated in 56, 145 conditions unacceptable to authors of 175 rogue states defined in 96 nuclear age 3 advent of 5 early 42, 43 nuclear weapons 8, 36, 60, 102, 112, 187, 188, 215, 217 arrival/advent of 3, 35 attack options 9 concern about surprise attack with 36 deterrence 3 forestalling acquisition of 93–4 global annihilation 151 mixing nonnuclear and 227 North Korean crisis (1993–4) 53–9 obligation under Article VI of NPT 115 only existing nuclear powers may legitimately hold 115 production facilities 93–4 proliferation of 114–15 rival states 152 n. Russian concerns about 52

Index tactical 227 threat posed by 50 underground sites 227 Numantia 90 Nuremberg 33 Nye, Joseph 110–11 OAS (Organization of American States) 48 n., 49 n. Oberdick, John 221 n. Oberdorfer, Don 54 n., 55, 56 n., 58 n. objective wrongdoing 164 n., 165 n. O’Brien, Sean Michael 7 n. O’Brien, William V. 15 n. offense: best defense is 20, 93, 97 decisive 63 justified 16 may possibly be committed 117 object 191 strategic 34 oil 60, 62 n., 198, 202 Operation Just Cause (Panama 1989) 38 operational advice 4 operational prevention 103 opportunity costs 145, 158 oppression 183 Orend, Brian 213 n. organized crime 102, 103 spread of 106 Osirak 55, 56, 94, 215, 218 Ottoman empire 31, 32 outlaw regimes 114 overt actions 192 serious, persistent 193 Owens, Patricia 223 n. Oxford Leverhulme Programme 171 n., 221 n. Pacific 23, 60 pacifism 149 n., 181, 183, 194, 209 epistemic variation on 211 proper way to evaluate 180 threshold of 175–9 Pagden, Anthony 90 n. Pakistan 150, 152 n. Palestinian-Israeli conflict 219 pan-Slav outburst 31 Panama 38, 94 Panyarachun, Anand 101–4 Paolini, Albert 238 n. Pape, Robert 41 n. Paralysis Example (McMahan) 127, 128, 140, 141 paramilitary terrorists 199 paranoid personality disorder 73 n. Paret, Peter 7 n., 24 n., 147 n., 148 n., 230 n.

259

Paris Peace Pact (1928) 33 passive resistance 73 Patrick, Stewart 232 n. patriotism 139 Pax Romana 197 Payne, Keith 227 n. peacebuilding efforts 104 peacekeeping and peacemaking 195 Pearl Harbor 2, 8 n., 23, 35, 42, 47, 49, 60 n., 61 peasants 184 Peball, Kurt 31 n. Peloponnesian War (431–404 BC) 116 penalties 166, 221, 237 norm violation 244 Pentagon 56, 57, 199, 226–7 see also DoD Dictionary Perle, Richard 99 permissible wars 172 Perry, William 53, 55, 56–7, 59 n. Persian Gulf region 198 persuasion 92 pessimism 115 Pettit, Philip 143 n., 206 n., 221 n. Pfaff, Lt.-Col. Tony 177 pillage 182 PMCs (private military contractors) 182 Podvig, Pavel 227 n. Pogge, Thomas 200 n., 238 n. Poincaré, Raymond 46 n. poison gas 187, 188 Poland 33, 211 policing 177 efficient 191 political association 186 politics 182 Poneman, Daniel 54 n., 55 n., 56 n., 58 n. positive moral entitlement 172 n. Possony, Stefan T. 29 n. poverty 102, 103 permanent 184 Power, Samantha 241 n. POWs (prisoners of war) 178, 242–3 PRC, see China predictability 205, 235, 241 predictions 165, 236 preeminence 220 preemption 2, 55, 57, 59, 60, 64, 65, 66, 94, 144–5, 171, 172 n., 215 acceptable option for coping with new threat 41 argument for/against 91, 93–100 clear criteria established for 239 conflicting conceptions of 2–6 defense, prevention, protection and 70 defining 4, 6 distinction between prevention and 3, 5

260

Index

preemption (cont.) expansive conception of 100 forcible 78 n. fundamental shifts in meaning of 3 grounds for 105–6 historical perspective 23–39 justified 5, 81–5, 118, 119, 126, 145, 214 legitimacy of 58, 100, 116, 118, 119, 120, 121, 214 necessity for 98, 100 political 37 prudence of 116, 118, 120 resort to 117 right of 98 self-defense and 74–6, 79–80 tradition of just war 116–18 Websterian 4, 5, 6, 11–14, 74, 79, 84, 85, 118–19, 223 n., 228 n., 229, 233 Press, Daryl 227 n. preventive war 1, 2, 22, 171 n., 202–21 arguments for/against 93–100, 119–21, 128–32 authorized by UN Security Council 20 blanket prohibition on 21 consequences of not fighting 17 consequentialist critique/view of 18, 210, 218–21 defined 6, 34 distinction between preemptive attack and 3, 5 every nation free to engage in 7 false promise of collective security through 121–4 fatally undermined 222 general permission to launch 172 highly selective 18 historical perspective 23–39 human rights and 171–201 institutional approach to 132–5, 136 intended to prevent Chinese acquisition of nuclear weapons 8 n. justified 12, 21, 33, 85, 126–42, 148, 149, 188, 189, 190, 193, 194, 195, 201, 222–46 launching against hostile rogue states 188 n. most serious moral objection to 21 norm on 17 particular potential cases of 18 political judgment in favor of 4 problem with 143–70 prompted by long-range calculations about power relationships 10 rethinking the morality of 126–8 rights-based objections to 135–42 self-defense 11–14, 86 n.

some advocates misrepresent 88 unjustified 4 US foreign policy and 7–9, 20, 40–68, 94 Princeton Center for Human Values 143 n. private armies 182 profit-making activity 182 proliferation 41, 106 global threat of 111 high-minded pronouncements against 112 proliferation fatalism 18 n. proper purpose 107 property 184, 185 prophylaxis 186 proportional means 107 proportionality 105, 119, 120, 124, 154, 160, 166, 169 interpretations of 155 lethal force violates 184 maximum force permitted by 177 satisfied 194 provocation 84 n. Prussia 23, 24, 25–6, 27, 30, 39 psychological pressure 163 public rules 203–6, 212 Puleston, W. D. 35 n. punishment 166 for aggression 213 liability for 165 Pyongyang 56 QDR (US Quadrennial Defense Review) 95–6, 98 Quester, George H. 227 radiological weapons 102 railway communications 27 Ramsey, Paul 15, 223 n. ranchers 184 rapes 185 rapid-strike missiles 231 Rawls, John 151, 211 n., 243 Raz, Joseph 176 n. Reagan administration 38 rearmament program (1952) 44 reasonableness 81 n., 142 rebels 190, 199 reconstruction contractors 222 Record, Jeffrey 1 n., 6 n., 8 n., 10, 12 n., 18 Red Cross 176 see also ICRC reduced responsibility 158 Reed, Laura 59 n. regime change 91, 98, 100, 116, 225 democratization through 90 forcible 94 Reichberg, Gregory M. 223 n.

Index reparations 221 resentment 124 justified 121 responsibility to protect 18–19, 109 retaliation 13 atomic 35 getting in first 69–88 threatened 49 Reus-Smit, Christian 238 n., 242 n. revenge 73, 165 revisionist states 123 revolution 183 Reynolds, David 60 n., 61 n. Rhineland 28 Rice, Condoleezza 97 Richelson, Jeffrey T. 8 n., 47 n., 48, 94 n. rights 21 customary law 145 forfeiture of 12, 166, 173, 174, 194 large-scale attack on 168 legal 84 moral 84 political 193, 226 preemption 98 preventive war 98, 100 primary 186 property 193, 226 retaliation 76 rogue states threaten large-scale assaults on 195 self-defense 74, 82, 87, 88, 91, 126, 140, 144, 160, 161, 164–6 self-protection 86 sovereign 41, 53 threatened 7 utilitarianism of 178 violation of 78, 84, 128, 168, 178, 190, 194, 206 waging war 87 worth fighting for 183–4 see also civil rights; human rights; ICCPR rights-based objections 135–42, 172 n., 173, 175, 190 Risse, Thomas 241 n. Ritter, Scott 113 rival states 152, 172 Rivkin, David 48 n. robberies 185 Robin, Corey 91 n. Rodin, David 1, 12, 13, 15 n., 16, 17, 18, 22, 83 n., 127 n., 161 n., 164 n., 165 n., 171 n., 172 n., 173, 174, 175, 177, 184, 185 n., 192–3, 195, 204 n., 208–9, 210, 211, 212, 221 n., 228 n., 233 n., 237 rogue states 40, 56, 116, 175, 189–90, 192, 221, 239

261

administration that first focused intensely on 96 best defense against 93, 97 dangerous 172–3 defined in NSS 96 determined to acquire WMD 96–7 no distinction between terrorists and 97 preventive force against 86, 172, 188 n., 220 serial aggressor 116 thoughtful criticism of the concept of 174 threat posed by 173, 195 US regarded as/behaving like 196, 197, 198, 199 Röhl, John C. G. 32 n., 67 n. role morality 181 n. Roman Empire 7 n., 89–90, 197 Roosevelt, Franklin D. 8, 42, 59 n., 60, 61–2, 63, 64, 65, 66 Roosevelt, Theodore 94, 99 Ropp, Stephen C. 241 n. Rosenberg, David Alan 93 n. Roy, Denny 58 n. rule-consequentialism 17, 143, 156, 157 n., 159, 206–7 and the impasse problem 149–55 rule of law 92, 103, 112, 117, 118, 184, 242, 244 contempt for 189 international 124, 199 weak collective capacity to exercise 106 rules of war 153, 154 n. action inconsistent with 157 second guessing the construction and interpretation of 160 Rumsfeld, Donald 20, 41, 96, 174 Rusk, Dean 51 n. Russell, Bertrand 43 Russia 26, 31, 32, 57, 63 allied with France 30 policy 67 Germany and 29, 30, 45–6, 52, 63 n. Japanese war with (1904) 28, 30 kind of legal basis for ‘intervention in near abroad’ 58 preemption and preventive-war doctrine 116 see also Soviet Union Rwanda 16, 238 Sacks, Albert 197 Saddam Hussein 113, 187, 188, 192, 194 n., 216–17, 224, 229 removing 202 safety 90, 118 no medium between conquest and 93 Sagan, Scott D. 18 n., 55

262

Index

sanctions 54, 101, 219 impartially and consistently applied 157 militarily enforced 224 risk of 123 targeted 124 Sanger, David 6 n., 47 n. Sarajevo 32 sarin gas 187 Saudi Arabia 219 Sazonov, S. D. 46 n. Scales, Robert 37, 38 Scanlon, T. M. 200 n., 244 n. Schäfer, Theobald von 32 n. Schauer, Frederick 207 n. Schelling, Thomas C. 120, 232 n., 241, 245 Scheppele, Kim 221 n. Schlesinger, Arthur 41 n., 47, 49, 51 n., 67 n. Schlieffen, Alfred von 30 Schmitt, Bernadotte 46 n. Schrecker Ellen 91 n. Schroeder, Paul 40 n., 46 n. Schwarz, Hans-Peter 51 n. Schweller, Randall 60 n. Scowcroft, Brent 54 se defendendo 162, 163 secrecy 234, 238, 243 obsessive 235 security 1, 40, 57, 145 n. absolute 24 collective 89–125 internal and external 90 physical 78 primary interest of states is to maintain 152 right to 179 states have to provide for their own 59–60 threats to 20, 64, 175, 197 security imaginaries 113, 114, 115, 116 dominant 123 seizing the initiative 36 self-defense 5, 16, 116, 172 n. aggression distinguished from 71 anticipatory 41, 47, 50, 51, 53, 70, 79, 174 forfeiture-of-right theory of 166 justified 12, 13, 14, 81–5, 87, 105, 127, 179–80, 185, 236 killing in 173, 177, 179–80 legitimate 96, 161 morality of 82 n. natural law accounts of 82 necessity of 119, 162–4 needs to be interpreted carefully 214 permissible 81 n., 173 preemptive 20, 69, 70, 74–6, 79–80, 85–8, 96, 144, 145, 171 preventive 11–14, 33, 69, 70, 87, 140, 144, 160–70, 173, 236

psychological necessity view of 163 retaliation and/in 70–1, 72–4, 79 right of 10, 12, 47, 50, 51, 57, 82, 87, 88, 91, 101, 126, 140, 144, 160, 161, 164–6 understood in global terms 99 use of force in 69, 70, 77, 79 n., 81, 82, 83, 178 self-fulfilling prophecy problem 172, 193, 194, 233 self-interest 84, 99 defined in global terms 116 perceived 7, 9 rational 6, 233–4 self-preservation 73, 88 self-protection 70, 73, 79, 88 constraining opportunities for 141 right of 86 self-restraint 140, 141 Senate Foreign Relations Committee 57 n., 68 ‘separate morality’ conjecture 181 September 11 terrorist attacks (2001) 36, 57, 69, 74, 76, 94, 96, 143, 202, 220 Serbia 31, 32 showdown over 45 Seven Years War (1756–63) 23, 24, 25–6, 27 Sherwood, Robert E. 63 n. Shewmaker, K. E. 74 n., 119 n., 223 n. Shinrikyu, Aum 187 Shirk, Susan L. 59 n. ‘shoot first’ policy/statutes 64, 178 n. Shue, Henry 18 n., 22, 89 n., 143 n., 168 n., 184, 204 n., 221 n., 229 n., 233 n., 238 n., 243 n. Shultz, George 38, 64 n. siege 90 Sierra Leone 182 Sigal, Leon 54 n. Sikkink, Kathryn 241 n. Silesia 28 Simpkin, Richard 37 Singer, Peter 185 n., 221 n. Sinnott-Armstrong, Walter 14, 15, 16, 17, 18, 148 n., 149 n., 171 n., 193 n., 206 n., 208 n., 212 n., 232 n., 235 n. Six Day War (1967) 145, 215 Slocombe, Walter 57 Small Boy Units 185 n. smallpox 188, 191 genetically modified 229, 230 Smith, J. C. 162 n. Smith, Michael 143 n., 206 n. Smith, R. Jeffrey 54 n. sneak attack 35 Snider, Don M. 177 n. social Darwinism 31 social justice 179

Index Sokolovsky, V. D. 35 n. Sokolski, Henry 55 n. Somalia 111 Sonderweg thesis 25 Sorabji, Richard 127 n., 165 n. Sorensen, Theodore C. 8 n., 47, 50 n. South Africa 115 n. South Korea 54 nuclear probability 58 sovereignty 25, 33, 99, 105, 153 n. major powers have common interest in limiting 58 total dissolution of 116 Soviet Union 34, 35, 62, 63 n., 147 alleged to be assisting Grenada 94 atomic arsenal 44, 45 brutal dominion over Eastern Europe 146 n., 209, 211 building a nuclear force 43 Communist attitude toward power 46 concern about surprise attack with nuclear weapons 36 Cuban missile crisis (1962) 8, 47–52 German invasion of 62, 63 JFK reported to have considered enlisting, in bombing Chinese nuclear facilities 93–4 justified preventive strikes by 150 war casualties 146 see also ‘Four Policemen’ Spain 90 Sparta 116 special forces 38 speed principle 28, 37, 39 spillover effects 58 spiral of anticipation 232 Srebrenica 187 stability 100, 205, 232–5 international 91 long-term 100 reasonably long periods of 152 route to peace and 104 safety and 90 systemic 241 Stalin, Joseph 35, 43, 46 standing armies 122, 169 standoffs 151 Stang, Sister Dorothy 184 Stark, Adm. Harold 60, 62–3 starvation 184 Stephanopoulos, George 174 n. Stevenson, Adlai 50–1 Stone, R. 162 n. Strachan, Hew 2, 3–4, 5–6, 10, 27 n., 41 n., 75–6 nn., 234 n. strategic balance 42, 46, 52, 66 strategic bombing 35

263

strategic planning 169 strategic theory 2 strong states 151–2, 157, 159 structural prevention 103 subjugation 168, 194, 195 submission 89 Sudan 240 Sulzberger, C. L. 43 n. superiority 35 atomic 45 global 98 military 98, 154 strategic 46 superpowers 17, 39 alliances formed to forestall creation of 25 exceptional permissions 157 surprise attack 2, 5, 37, 39, 121 cautionary example of danger of 23 fear of 232, 233, 235, 245 imminent 35 legality of 28 nuclear 36, 137 threat of 241 surveillance planes 219 Survival 57 Susskind, Ron 90–1 sustainable development 103 Svechin, Aleksandr 34 Swedish troops 16 ‘swords into plowshares’ 179 Syria 150 Syse, Henrik 223 n. Szilard, Leo 43 Taiwan 58 Taliban 76, 202, 219 Tannenwald, Nina 8 n., 227, 241 n. Taylor, A. J. P. 60 n. terrorism 13, 36, 40, 57, 69, 101, 102, 199 al-Qaeda 202 American-sponsored 195 best defense against 93 breaking up cells 219 conspiring to commit massive unjust harm 135 increasing the risk of 106 international 145 irresponsible states and 108 major surge in activity 225 mass-casualty, preventing 106 networks of 114 new deadly challenges from 96 nuclear 102 obligation not to support 99 only way to deal with 41, 96 preventive force justified against 86 religiously fanatical 229

264

Index

terrorism (cont.) right of preemptive self-defense following attacks 74 state-sponsored 97, 190 states with a history of tolerating 199 support for 190, 199, 219 threat of 41 torturing an individual 128 transnational 41 WMD and 86, 108, 113, 145, 175, 186, 188, 202 wrongdoers create opportunities for 99 thermonuclear war 49 Thielmann, Greg 230, 231, 237 Third Reich 210 Third World rogue states 56 Thomas, Dan 241 n. Thomas, Ward 241 n. Thomson, Judith Jarvis 164 n. threat-predictors 190 threats 27, 35, 50 n., 64, 112, 141, 202 n. accuracy in assessment of 235, 245 actual 14, 20, 77, 79, 82, 84, 85, 86, 94, 116, 135 n. anticipated 82 conditional 78, 84 contingent 78, 84 conventional 220 cumulative 80 delayed action 84 destroying 40 developing 41 direct 90 distant 76 n., 115, 171 n., 172 economic and social 101 emerging 77, 80, 143, 145, 190–1, 193 exaggerated 230, 232 future 14, 20, 77, 90, 94, 100, 116, 118, 121 genuine 188, 189, 190 grave 64, 124 growing 90, 96 high-magnitude 186 identifying/identifiable 40, 79, 84, 96, 98, 102, 122 immanent 20, 86 n., 92, 94, 97, 113, 116, 121 immature 76 n., 172 immediate 70, 97, 119, 120 innocent 164 n. interconnected 89, 102, 123 internal 107, 149 international 108 just 195 large-scale 101, 168 latent 104 likely 97 military 219

national security 175 neutralizing 41 no choice but to tackle the whole range of 89 nonimminent 168 nuclear 94 omnipresent 116 perceived 91 pessimism with respect to 115 possible 77, 80, 85, 94, 100, 116, 121 potential 38, 77, 80, 85, 91, 116, 152, 160–1 promissory 78 reaction against 79, 122 real 14, 122 repelling 82 n., 83 rogue states 220 seriousness of 107 significance of state of 76–8 sufficient 5, 167 surprise attack 241 threshold of 109 time horizon for realization of 121 unbearably great 185 unconventional 220 unjust 70, 83, 84, 86 n., 87, 138, 172 n., 195 see also imminent threat Thucydides 6, 242 time advantage 37–8 Timmons, M. 208 n. Tokyo 187 torture 128, 242, 243 n. justifiable 246 ‘ticking bomb’ hypotheticals used to justify 230 violation of prohibition of 159 totalitarianism 112 Trachtenberg, Marc 1 n., 7–8, 11 n., 23 n., 35 n., 43 n., 44 n., 46 n., 93 n., 113 n., 210 n., 222, 234 n. transnational crime 102 transparency 92, 108 Treaty Providing for the Renunciation of War as an Instrument of National Policy (1928) 116 n. trench warfare 33 Trident-2 missiles 226–7 Triple Alliance 29, 31 Trolley Problem 129, 200 Truman, Harry S. 1, 8, 42, 43, 44, 46, 51 n., 66 Tsarist Russia 46 Tuck, Richard 4 n., 24 n., 117 n., 149 n. Tucker, Robert W. 15 Turenne, Henri de la Tour d’Auvergne, Vicomte de 28 Turkey 48, 49 Tutsis 16 two-front war 29

Index two-moralities conjecture 180–3 tyrannical regimes 219 U-boat threat 64 Überfall 28 UK, see Britain UN (United Nations) 48 argument for preventive action by 100–10 enforcement of international law 88 enforcement of resolutions 202 system founded on fiction 99 unique legitimacy provided by 91 weapons inspectors 219, 224 see also following headings prefixed ‘UN’ UN Charter 3 n., 88, 99, 197, 198 Articles 48 n., 50, 91, 100–1, 105, 144, 171 n., 237 Chapter VII 19, 100, 104, 108, 121, 122, 145 n. preamble 200 UN General Assembly 19 test of representativeness 123 UN High-level Panel on Threats, Challenges and Change 19, 76 n., 91–3, 101, 103, 105, 106, 107, 108, 109, 110, 112, 113, 120, 121, 122, 124, 234 n., 235 n., 237 UN Human Rights Committee 179, 181, 182 UN Secretariat 113 UN Secretary-General 19, 108–10, 112, 113, 120, 124, 234 n., 237 An Agenda for Peace (1992/1995) 104 Larger Freedom (2005) 102, 105 Prevention of Armed Conflict (2001) 102 n., 103 see also Annan; Boutros-Ghali UN Security Council 19, 21, 58 n., 93, 101, 107–8, 116, 199, 218 advance approval of 243 authorization issues 20, 92, 106, 107, 110, 118, 123, 124, 145 n., 232–45 development of clear procedures urged within 105 EMA approval blocked by one or more members 239 enlarged membership 123 invoked rights granted under resolutions 143 n. legitimacy provided by 92, 107, 113, 121 missions and preventive deployments 103 no EMAs without approval 242 permanent members 197 Resolution 1540 (2004) 114, 115 restructured 123 secret deliberations 234–5, 238, 243, 245 states not obliged to wait until agreement in 91

265

veto-holding states 115, 122, 197, 238 UN World Summit (2005) 19 uncertainty 12, 98, 175, 193, 233, 237 decision-making under 211 role of 185–6 unconventional weapons 187, 188 Uniacke, Suzanne 5, 12, 13–14, 17, 20, 79–80 nn., 82 n., 135 n., 164 n., 171 n., 172 n., 213, 221 n. unilateralism 20, 39, 91, 113 n., 145, 201, 244 debates about 232 United States 119, 167, 209–10 argument for preemption 93–100 army thinking on future war 37 case for Iraq War 174 conspiracy statute 192 Constitution 186 contemporary political rhetoric 5 conventional bombs 187 corrosive behavior of 235 deployment not complicated by need to work with allies 38 exceptional permission demands 158 focus on WMD appropriate for 188 n. forcible regime changes initiated by 94 foreign policy 7–9, 20, 40–68, 94, 95, 98, 113, 197, 222 hatred among Arabs of 219 hegemony 157 n. identity as global power 96 intention to shoot missiles at 217 interests of 4, 98, 99, 100, 108 invasion of Iraq (2003) 22, 85, 90, 174, 193, 194 n., 195, 199, 223, 224–5, 240, 244 justified preventive strikes by 150 militarism in civilian society 178 n. military power/spending/superiority 4, 98, 154 nuclear monopoly and superiority 35 Pacific Fleet 23 preemptive action option 175 preventive war 4, 7–9, 20, 40–68, 93–100, 143 regarded as rogue state 195, 196–9 Secretary of the Treasury 234 states that hate 97 Supreme Court 186 terrorist attacks, see September 11 vulnerability of 20, 96, 97, 98, 111 war between Nazis and Allies 210 war in Afghanistan 76 see also Acheson; Aspin; Ball; Bundy; Bush; Carter; Cheney; Clinton; Dowling; Eisenhower; Ford; Fulbright; Haas; Jackson; Johnson; Kanter; Kennan; Kimmel; Kissinger; Marshall; Monroe;

266

Index

United States (cont.) Nixon; Perle; Perry; Reagan; Roosevelt; Rumsfeld; Rusk; Schlesinger; Scowcroft; Shultz; Slocombe; Stark; Stevenson; Thielmann; Truman; Webster; Welles; Zelikow unjust attack: defensive response to 3 future 138 unjust cause 140 unjust war 15 killing cannot be justified in 177 unprovoked attack 65, 84 urban warfare 179 Urbañski, August von 31 n. use of force 5, 12, 54, 74, 76, 132 actual 19 aggressive 85–6 conditional and nonconditional intentions 170 danger of creating false expectations about 39 defensive 15, 69, 70, 77, 79 n., 81, 82, 83, 166 excusable 87 n. first 3, 234 full authority to 104 grossly excessive 73 harmful 69, 70, 73, 81, 83, 84, 88 hostile 72 international 234 international, moral and legal framework on 145 justified 14, 70, 81, 85, 88, 107, 108, 178, 186 legitimate authorization or endorsement of 107 lethal 135, 178, 183, 184, 185 necessary and proportionate 82 n. necessity of 171–2 nn. nondefensive 16 positive moral entitlement to 172 n. preemptive 42, 47, 58, 75, 77, 78, 79, 80, 84 n., 85 preventive 13, 19, 80, 86, 93, 100, 101, 104, 105–6, 108, 109, 110, 118, 120, 121, 122, 123, 124, 127, 135 prohibited 50 n., 88 prophylactic 186 protective 15, 16 retaliatory 172 n. right authority for 241 right to 47, 50, 58, 100 self-defense justification of 171 n. threat of 19, 199 traditional refrain from 41 unfair to expect refrain from 141

unilateral and lawless 91 unnecessary 80, 235 unwillingness for purely political purposes 65 urgency of 227–30 willingness to 68 USSR, see Soviet Union utilitarians 211 Utley, Jonathan 61 n. utopian impossibility 180 value judgments 184 controversial 195 Van Evera, Stephen 66 n. vendetta 183 vengeance 73, 183 Verdy du Vernois, Gen. J. von 27–8 ‘Victory Program’ 63 Vienna 31, 32, 59 n. German military attaché 29 Vietnam 37, 38, 187, 195, 198 explosives tied to back of young child 208 US Special Forces in 196 n. vigilantism 183 Vilfrong, Daniel 29 n. violence 84, 111, 148, 162, 172 n. fascist glorification of 199 ideology favoring 190 inconsistent with rights 179 lethal 178 n. micro and macro 180 national ideology that glorifies 198 past history of 172 people who have done nothing to forfeit rights against 173 risk of instability and 103 track-record of 190 unjustified 140 voting rights 184 vulnerability 20, 38, 97, 111 enlarged sense of 96 great and perpetual 98 interdependence and globalized world characterized by 112 mutual 101 waiting war 7 Waldersee, Alfred von 30 Waldron, Jeremy 176 n. Waltz, Kenneth 66 n. Walzer, Michael 4–5, 13, 117 n., 122, 123 n., 124 n., 144 n., 146, 149, 150, 167, 169, 239 n. Wang Fei-Ling 59 n. war-at-will 172 war crimes 19, 33 Wark, Wesley 230 n.

Index warlords 182, 184 wars of attrition 37, 63 wars of subjugation 168, 195 Warsaw Pact 48 n. Washington 74, 143 Washington Post 53, 54 Wasserstrom, Richard 178 weak states 106, 151, 152, 173 weapons programs/inspectors 172, 173 see also biological weapons; chemical weapons; nuclear weapons; WMD Webster, Daniel 4, 5, 6, 11–14, 74, 79, 84, 85, 118–19, 223, 224 n., 228 n., 229, 233 Wehrmacht 34 Weiss, Thomas G. 224 n. Weldes, Jutta 113–14 Welles, Sumner 61–2 Wells, Donald A. 33 n. West Germany 52 Westphalian system 53 Wheeler, Nicholas J. 16 n., 239, 241 n., 244 n. Wilhelm I, kaiser of Prussia 27 n., 29, 32 Williams, Melissa S. 238 n. Wirtz, James J. 56 n., 69 n. Wit, Joel 54 n., 55 n., 58 n. WMD (weapons of mass destruction) 9, 11, 15, 16, 102, 108, 174, 221, 224 n., 231, 235, 240, 245 acquisition of 115, 152 n. armed attack with 91 brink of war that might involve 55 capable of delivery within an hour 113 capacity to be used without warning 85 chemical and biological 217 consensus interpretation of dangers of 114 consequences of attempting to deter use of 18 desire to prevent the spread of 59 destroyed/dismantled 173, 194 n., 224

267

devastating consequences of 226 easy access to technology 96 elimination of 225, 227, 229 mythical 228 preventive attack on 228 proliferation of 41, 111, 114 readily usable 223 right to move against 57 rogue states and 86, 96–7, 190, 220 significance of 186–8 stockpiles of 224, 225, 229 suspected caches of 226 terrorists and 86, 108, 113, 145, 175, 186, 188, 202 threat of 40, 80 n., 90, 172 unconventional 220, 221 US continues to amass 198 Woodward, Bob 41 n. Woodward, C. Vann 10 World Court 199 world domination 44 world peace 91 World War I (1914–18) 29, 33, 152 World War II (1939–45) 35, 67, 146–7, 200 entire cities razed by conventional bombs 187 long-term balance of consequences 146 major element in Roosevelt’s thinking 59 n. Yemen 182 Yongbyon 55 Yuen Foong Khong 232 n. Zalta, E. N. 206 n., 213 n. Zelikow, Philip D. 8 n., 49 n., 51 n., 52 n., 55 n., 68 n. Zhou En-lai 146