Preemptive or preventive war: a discussion of legal and moral standards.

• Author: Barela, Steven J.

Common in today's discourse about U.S. foreign policy are the terms preemptive and preventive war. An enormous problem with the use of these terms is that there has been little attempt to clarify their specific meanings, much less initiate a discussion over their ethical and legal implications. This problem has resulted in an environment of ambiguity for determining and discussing a standard for when the United States is to engage in war. The objective of this essay is to raise the level of understanding of the important distinctions between these two terms by examining their legal, moral, and current uses. Through this investigation, I hope to achieve a clearer understanding of the war-making policies of our nation and all others.

First, it is necessary to discuss the significant intersection between the concepts of ethics and international law. At this point in history, one might describe international law as a system of largely unenforceable norms that nations share to better predict and evaluate behavior between states. What comprises these customs tends to emerge out of a concerted effort to search through historical precedent to find--and, when possible, to codify--normative interaction. There is no official body entrusted with this task, and it therefore might be explained as an accepted inter-subjectivity. One might even say that, often times, these norms or laws arise from each state's choice to refrain from a particular behavior since it would not like to see this specific action visited upon itself. I suggest that this is the same process that allows one to arrive at similar ethical determinations. Inter-subjectivity, or understanding of a shared reality, seems to be the critical building block for establishing a code of ethics or norms for a law of nations.

This is not to be confused with the concept of legal moralism, which contends that it is possible and necessary to codify a prohibition of behavior based on the shared morality of the majority in a society, even when the behavior does not endanger others physically or psychologically. (1) International law might instead be generally understood as seeking to protect members of international society without imposing cultural or religious biases or morals.

There is an essential distinction between personal moral behavior and the moral behavior of states. Individuals who negotiate for state governments might often be purely self-interested and oblivious to the common good of their people and, thus, sign unethical treaties that are advantageous only for the elite. Therefore, it is erroneous to assume that, unless a state truly represents the interests of its people, it is the single unitary actor in international affairs and is fully capable of acting morally. This circumstance is certainly problematic, but in the current global structure of nation-states there does not appear to be an obvious solution other than advocating for ethical arguments in the legal forum and criticizing those treaties that might undermine the common good. Hence, I intend to approach the topic of preemptive and preventive war with an ethical analysis aimed at optimistically creating the conditions for an inter-subjective legal consensus based on the stark difference between these two terms, in both their meaning and moral implications.

U.S. Department of Defense Dictionary

To begin, we will turn to the dictionary created by the U.S. Department of Defense (DOD) to reach for clarity on the distinction between the two terms in question. It would perhaps be overreaching to take these definitions as definitive, since they are but one linguistic clarification, and would thus fail the litmus test of a global inter-subjectivity. However, considering that the U.S. government produced this dictionary, the same government that brought the issue of preemptive and preventive war to the forefront of world politics, it does provide a substantive starting point. "Preemptive attack: An attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent." (2) "Preventive war: A war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk." (3) The first feature in these definitions worth noting is that the DOD actually recognizes that there are, in fact, two different levels of anticipatory self-defense. In addition, there is a marked difference in tone between the two definitions. Leaving no room for doubt about the burden of proof for the cases in which it is applied, the language used to define preemption is particularly commanding. On the other hand, prevention is based on certain subjectivity that allows for interpretation in each case in which it is applied. Additionally, there is a stark contrast in linguistic strength, and hence, moral tone, between the words incontrovertible and imminent when compared with the terms belief and risk. This author suggests that many would not argue with the notion that, by these descriptions, preemption would appear to be a moral act of self-defense, while preventive war would regularly raise doubts because of its inherent subjectivity. With these two apt and functioning definitions established by the DOD, it is necessary to see whether the same distinctions and clarity will hold up when investigated historically.

Historical Treatment of Anticipatory Self-Defense

No matter how we define and distinguish the terms preemptive and preventive war, they will no doubt fall into the same category of a perceived defensive maneuver before an attack has occurred and, hence, be considered some type of anticipatory self-defense. Therefore, it is necessary to first establish that the concept of anticipatory self-defense actually exists in customary international law. I first turn to the often accepted father of codified international law, Hugo Grotius, and his work, On The Law of War and Peace. (4) First published in 1625, this voluminous work of three books treats the subject of anticipatory self-defense in Book II, Chapter I:

The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought, to be a ground for killing another, to prevent his SUPPOSED intention. (5) Here, Grotius indeed recognizes a right to anticipatory self-defense if the threat reaches a level of certainty and proximity in time. However, this right is clearly not proclaimed to exist without any constraint. Although there are moments in which one can act before injury occurs, there is evidently a line that, if crossed, changes a self-defensive action's moral character and legality.

In a subsequent section of the same Book II, Grotius addresses the notion that a state might claim the right to use force to disarm another state if the other state is acquiring weapons and power that will come to imperil itself and others: (6)

Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorises one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favour. The causes which entitle a war to the denomination of just are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote, or future annoyance from a neighbouring state affords a just ground of hostile aggression, is a doctrine...