Law Lesson: Just War vs. Preemptive War

Part of a Continuing Series: One of the things I’ve noticed over the last three or four years of national debate about the War on Terror is that it is oddly common for people to ignore international law—even when it supports their arguments. This has been a pet peeve of mine for a while, simply because I do not like to see anyone leave a good argument lying on the table.

With the hope that you never leave an argument alone simply because it’s about a sticky subject, here are some simple, straightforward, and useful facts about international law that may help you out the next time you’re talking about current events.

Current Event That Prompts Discussion: A Republican presidential candidate claims during a GOP debate that “we [the U.S.] have accepted the principle of preemptive war; we have rejected the Just War theory of Christianity.” Your coworkers, having by now a pretty good idea of your political positions and your penchant for discussing international law, and a desire to get back at you for embarrassing them last time you chatted, accost you at the coffeepot.

Leftist/Ron Paul Supporter Commentary: See, Republicans are finally admitting the truth. Preemption is incompatible with Just War; the Iraq War, a preemptive war, is therefore unjust.

Your Answer: No it’s not. Preemptive war is not incompatible with Just War theory; nor is the Iraq War unjust because it was preemptive. You only think so because you saw an idiot, probably Ron Paul himself, say it on TV. (You may not want to start with such a rude tone, but I, for one, am sick and tired of your coworkers bugging you every time you get a cup of coffee.)

It helps if you know what we’re talking about. Just War theory is a rejection of the early Christian notion that it is unacceptable to have or participate in a war ever. In fact, it explicitly provides that war is okay if certain conditions obtain. Those conditions are unquestionably: 1) Just Cause; 2) Just Authority; and 3) Just Result. Modernly, some additional conditions include 4) Proportionality and 5) Last Resort, but the degree of proportionality or certainty of finality are soft ideas. Some folks also insist that the country which claims to be making Just War must announce their intention to fight and that they must be fighting for a greater justice than the other party. But these last conditions are agreed on by few.

Fortunately, the Just Cause condition is uncontroversial. Self-defense is a Just Cause. Defense of others is a Just Cause. Punishment of wrongdoing is a Just Cause. To the extent that war is undertaken as defense of others and as punishment of wrongdoing, preemption is irrelevant in the case of Iraq because Saddam Hussein’s regime was already guilty of attacking others and committing horrible wrongs.

That leaves the issue of self-defense, which the international community has long acknowledged includes preemptive war. Ron Paul has not explained why he disagrees with the international community on this point. But international law and custom is clear: self-defense includes preemptive war. Just War theory is clear: self-defense is a Just Cause. Therefore, the Iraq War, a preemptive war is not unjust simply because it was preemptive.

Some people have argued that the Iraq War was not preemptive, but rather preventive. That’s a different question; it’s not what Ron Paul said. And there is an important distinction between the two; maybe we’ll discuss it another day.

That’s All For Today: Now smile at your interlocutors, take your coffee, and get back to work. They’re not paying you to stand their gabbing, y’know?

My Other Law Lesson Posts:

About Those Trials
Illegal War
Unlawful Combatants

posted by Gabriel Malor at 08:36 PM

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