Looking for Justice: Applying the just-war tradition.

The inspectors are not in Iraq to play hide and seek with Mr. Saddam Hussein … So far, the signs are not encouraging.
— President George W. Bush on December 2, 2002

Would U.S. military action against Iraq meet the requirements of the just-war tradition, the standard by which most Americans have long judged the legitimacy and morality of military action?

Influential voices differ. The U.S. Catholic bishops, for instance, recently suggested that the just-war tradition raises "serious questions about the moral legitimacy of any preemptive, unilateral use of military force to overthrow the government of Iraq."

These three issues — preemption (just cause), unilateralism (competent authority) and regime change as an explicit war aim (right intention) — are the three paramount concerns of the just-war tradition regarding proper resort to force. What is more, all three grounds are better understood as moral imperatives for military action against Iraq in the service of justice, order, and peace.

EDITOR’S NOTE: This is the fourth of a five-part analysis of the legal and moral aspects of the confrontation with Iraq. (Read Part III here, II here, and Part I here.)

THE JUST-WAR TRADITION
The just-war tradition offers a moral framework for relating ends and means in considering whether and how armed force may be permissible or even required. It reflects the collective legacy of Western thought — both religious and secular — in grappling with enduring moral concerns where the stakes are literally matters of life and death. Despite its religious origins — in the duty to defend innocent life (and the common good) from unjust aggression as a matter of charity or love of neighbor — the tradition also finds expression in thoroughly secular forms that do not rely on religious grounds. And it forms the basis for much of modern international law, especially regarding the proper use of force.

The just-war tradition raises the relevant moral issues in ways that people of good faith can readily grasp and argue with one another, though they may well reach differing conclusions in particular cases (including Iraq). Over the past decade it was chiefly in terms of this tradition — though not always explicitly, to be sure — that Americans sought to relate ends and means in connection with the use of force in the Gulf War and the former Yugoslavia. In fact, anyone rejecting the claim that "anything goes" in relation to self-defense is already thinking in just-war categories.

The tradition is not, however, a set of abstractions capable of mechanical application yielding predictable or indisputable conclusions. Despite its antiquity, the tradition also possesses the flexibility to take into account authentically new questions raised by the changing international landscape — such as the rise of mass-casualty terrorism and non-state actors like al Qaeda — and the changing face of modern warfare — including WMD and precision-guided munitions.

Just-war reasoning begins with two sets of related questions: whether in a particular situation it is morally permissible to resort to war (ius ad bellum); and, if so, what is right conduct within war (ius in bello). Whether force is permitted or even required must be determined affirmatively before considering how it may be used.

Historically the threshold question of permission has required a just cause, a decision by proper authority with the right intention, as well as the judgments that there is a reasonable hope of success, that the expected good will outweigh the expected evil (overall proportionality) and that war is a last resort waged for the goal of peace. The question of limitation in turn requires discrimination (avoidance of direct, intentional harm to noncombatants) and proportionality of means (avoidance of needless destruction to achieve justified ends).

As noted above, one thoughtful recent application of the just-war tradition to Iraq is the September 13 statement issued on behalf of some 300 U.S. Catholic bishops serving some 63 million U.S. Catholics. This careful, nuanced statement, written for the guidance of Catholics and non-Catholics alike, explicitly leaves room for legitimate disagreement: "People of good will may apply ethical principles and come to different prudential judgments, depending on their assessment of the facts at hand and other issues." The bishops' collective judgment, however, is that U.S. military action against Iraq "is difficult" — though not impossible — "to justify at this time" on grounds of just cause, competent authority and right intention.

JUST CAUSEbr/> Just cause exists when force is used to defend against attack, recover something wrongly taken or punish wrongdoing. While modern interpretations generally emphasize defense as the sole permissible reason to use force, this category has expanded in practice to include the other two grounds, as in the case of Kuwait (retaking a wrongly occupied state) and Kosovo (halting egregious violations of international human rights norms).

Both the tradition as a whole and its two foremost modern interpreters — James Turner Johnson and Michael Walzer — explicitly agree that just cause embraces the preemptive use of force. Walzer cites Daniel Webster's formulation in the Caroline case (see article 3) in support of preemption as a morally legitimate exercise of force in proper circumstances:

Imagine a spectrum of anticipation: at one end is Webster's reflex, necessary and determined; at the other end is preventive war, an attack that responds to a [more] distant danger, a matter of foresight and free choice …. The line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat …. a manifest desire 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.

Where does Iraq stand today on this "spectrum of anticipation"? Its undeniable threat must be judged by its gravity, imminence and the level of certainty needed for military action — all measurable by degrees.

Capacity alone does not pose an actionable threat, but Iraq's actual and threatened WMD use, its ongoing development efforts — both in defiance of international law — and the proven inseparability of the regime and its unconventional arsenal all clearly indicate the requisite hostile intent. The potential harm of these weapons must also be considered in light of Saddam's demonstrated propensity for risk-taking and revenge. Given its role in thwarting Saddam's regional ambitions, the U.S. in particular faces threats that are not distributed evenly across the international community (or the 15-member UN Security Council). Iraq's figurehead vice president recently declared Iraq's "right to confront the aggressors on its [sic] land and in any place the aggressors are found." "An enemy is an enemy," he continued, "any American, British or Zionist interests on Arab lands or within reach of Arabs, wherever they are, I consider as legitimate [targets]."

Imminence is unlikely to be established by an evidentiary "smoking gun" short of a mushroom cloud over an incinerated American city. This lack of perfect certainty derives from the closed nature of Iraq's tiny ruling circle, the probable lack of reliable human intelligence, and the circumspection dictated by U.S overhead surveillance and signals interception capabilities. In these circumstances, publicly available evidence may not satisfy the expectations of a culture accustomed to unrealistic standards of proof derived from TV police and courtroom dramas. Meanwhile, Iraq's nuclear weapons program in particular proceeds apace, thus shrinking the opportunity to act without risking nuclear threats to vital U.S. interests — including American cities. As Henry Kissinger properly concludes, "If the danger exists today" — as it surely does in Iraq's proven CW and BW capacity — "waiting will only magnify the dangers for blackmail."

This "grave and gathering danger" also must be considered in its proper context — the September 11 attacks — whether or not Iraq was directly involved. These attacks (a) set a new and previously unthinkable threshold for mass-casualty terrorism, (b) destroyed any illusion of immunity or exceptionalism on the part of a vast continental nation protected by broad oceans and friendly neighbors and (c) made wholly unacceptable any further tolerance of international terrorism's state sponsors. Iraq may not be the most active state sponsor of terrorism — that's Iran's dubious distinction — but it poses by far the most immediate threat. Sufficient unto the day is the evil thereof.

Finally, preemption is not intended as a general doctrine for routine application, but rather an exceptional measure reserved for the gravest and most imminent threats. Nor is it by any means a novel practice. President Bush recently acknowledged this by quoting President Kennedy's memorable admonition delivered during the Cuban missile crisis: "Neither the United States of America, nor the world community of nations, can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world," Kennedy added, "where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril."