Preemption:

Much of the world has had misgivings, to say the least, about the new U.S. foreign policy of preemption. Some have argued that preemptive attacks can never be just while others argue that in certain extreme cases a war of preemption can be just. Others, still, give much looser parameters for when a war of preemption is just. In this paper I will ask whether or not preemption is ever acceptable and just and then apply the answer to this question to the particular example of Iraq and George Bush's war.

When is a war ethical? Some would say never because all wars bring only death and destruction. In this view, wars are never ethical and we should all adopt some form of pacifism. What about people who enjoy war or death or destruction or are willing to witness these atrocities in order to fulfill their own desires for material gain? Are we to turn the other cheek? Are there not times that demand we take up arms? No amount of pacifism would have prevented Hitler from conquering all of Europe. There are times when wars, no matter how disturbing, must be fought. In such cases are we infringing on our own ethics or are there times when wars can be just?

Over the last 1500 years the Western doctrine that has pillared considerations of war and centered debates about war has been the Judeo-Christian Theory of Just Cause. Developed by Saint Augustine and then later polished by Thomas Aquinas, Just Cause Theory attempts to answer four questions: 1) Who has the authority to declare war? 2) What reasons are necessary and sufficient to declare war? 3) What special considerations should influence the declaration of war? 4) What means are just in a war, in reference to armed antagonist and unarmed bystanders? In answering these questions Just War theory has developed seven basic principles that determine whether a war is just or unjust. Five of these principles comprise considerations about "justice on the way to war" (Jus ad bellum). The remaining two principles take into account considerations of "justice in the midst of war" (Jus in bello). While presenting each of these principles I will also ask "can a preemptive war satisfy this condition" and "was this provision fulfilled in the case of the Iraq War?"

The first Just War principle is that of Legitimate Authority. Has the appropriate official(s) declared war or approved the application of force? A preemptive strike can secure the approval of legitimate authority. However, due to time constraints it could be difficult to secure appropriate authority for preemption attacks. In the case of Iraq months of rhetoric and military build preceded the war. Still there was no formal declaration of war by Congress. I say Congress because in Article I Section 8 of the United States Constitution only Congress is granted the right to declare war. Some might say that under the War Powers Act of 1973 the President has the authority to wage war for 60 days but this was meant as protection and reaction to immediate threats particularly in cases of self defense where the US had been directly attacked and a quick response is needed. The Iraq War, again, was preceded by months of military buildup, three months of combat and six months of occupation. If anyone would say that the US was reacting in self defense to the 9/11 attacks then the Presidents 60 day time limit had long expired. The decision to go to war with Iraq could only have been legitimately decided by Congress.

There is another important clause in the constitution that is worth mentioning now. Article VI says, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the LandÐ'..." The United States ratified the UN Charter in 1945 . The UN Charter now being part of the supreme Law of the Land it's worth also noting that Article 39 of the UN Charter 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 4 and 42, to maintain or restore international peace and security." This gives only the Security Council the legitimate authority to declare war. In addition, unilateral action is strictly prohibited by the UN charter as a violation of state independence and sovereignty. This idea can be found in Article 1 of the Charter: ""The purposes of the United Nations are . . . To maintain international peace and sovereignty, and to that end: to take effective collective measures for the prevention and removals of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace . . ." Furthermore while there are procedures by which collective action may be authorized by the Security Council to maintain or restore international peace and security (Articles 41 and 42) those procedures may not be used to sanction aggression in violation of the primary purposes of the U.N. Charter (Article 51 of the U.N. Charter acknowledges the right to self-defense). In the end, the only legitimate authority that can declare war is the same body that can never declare a first strike war (preemptive or aggressive). Hence preemption can never be just to a member of the UN.

The second Just War Principle is that saying that the cause be just. This has a lot more room for subjective beliefs as to what is and is not a just or unjust reason for war. Traditionally there have been three widely accepted just reasons for war: 1) Self-Defense, 2) Recovery of stolen assets, and 3) Punishment for wrongdoing. It is very hard to make the case a preemptive war is being fought for one of these reasons. The difficulties lie in proving that your antagonist will certainly or to a very high degree of probability, attack you, steal from you or perform some wrongdoing. Domestically it would never be acceptable to bring someone to trial for assault, theft, or other criminal activity before the action is actually committed. Only in very specific and extreme circumstances will preemptive punishment and action be implemented, such as a confession to a psychologist from a person with a history of instability or aggression or criminal activity. In international affairs the burden of proof also falls on those ready for preemption. A clear and present and imminent danger must be proved Ð'- an amassing army on your boarder who's leader threatens to invade. So despite the difficulty, preemption