May 28, 2009

Rule of Law, Not the Rule of Lawyers

Over at National Review, former Assistant United States Attorney Andrew McCarthy explains why we must adhere to the rule of law, and not the rule of lawyers

It's not the rule of law, it's the rule of lawyers: That's the central message conveyed by Pres. Barack Obama's nomination of Sonia Sotomayor, a judge of the Second Circuit federal appeals court, to replace retiring Justice David Souter on the U.S. Supreme Court next October.

Obama and the lawyers in his administration are fond of invoking the rule of law. Yet that golden standard stands on the conceit, honored more in the breach than in the observance, that "we are a nation of laws, not of men." It holds that there is an objective corpus of law -- of the community's reasoned consensus, shorn of passion, fear, or favor -- under which we've agreed to be governed and to which those chosen to represent us owe their fidelity. It's a nice ideal. Increasingly, though, our real governing standard is the one made infamous by the legendary litigator Roy Cohn: "Don't tell me what the law is. Tell me who the judge is."

Our ideal of judging was perhaps best explained by John Roberts during his 2005 confirmation hearings. The judge is like an umpire, Roberts mused. The umpire calls balls and strikes; he doesn't design or alter the rules of the game. That's how it's supposed to work. The judge's courtroom is the level playing field where even the visiting team can win if the law -- the objective law -- is on its side. Sure, the crowd and the local paper will root, root, root for the home team. The rules, however, don't have a rooting interest. Justice is blind. The umpire is there to see that justice is done -- not manufactured.

The president doesn't view the world that way. He wants the umpire to pick winners and losers, not simply to preside over a fair fight -- "fair," in this context, meaning a fight under rules agreed upon before the game gets started.


Meanwhile, over at TalkingPointsMemo, former Secretary of Labor (1993 - 1997) Robert Reich completely misses the point:

Although as an appellate judge she has sided with defendants, inmates, convicted felons, and environmentalists, she has also taken decidedly conservative stances. In 2002, she ruled against an abortion rights group that claimed the so-called "Mexico City Policy," prohibiting U.S. funding for foreign groups performing or supporting abortion services, violated their First Amendment rights. She reasoned that the government is "free to favor the anti-abortion position over the pro-choice position." In a 2004 case she ruled in favor of anti-abortion protesters who claimed a city had improperly trained police officers who allegedly used excessive force on them. And she has ruled against a number of minority plaintiffs in discrimination cases.

And she has an impeccable upward-through-education-and-hard-work pedigree: She grew up in public housing in the Bronx, the daughter of a factory worker, and got a law degree from Yale.

The issue is not whether her rulings favored conservatives or liberals. The issue is whether she followed the law or not. Reich reveals his own view of the judiciary by his statements. He sees it in purely political terms, which is a disastrous view for the rule of law.

Further, while it may be personally inspiring that she worked upward from poverty, it makes absolutely no difference as to her qualifications for this or any other judgeship.

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May 24, 2009

Our Classless President

That President Obama seems to think he's still campaigning for the White House is bad enough. Most of his speeches, it seems, are peppered with blame for this country in general or George W Bush in particular. Just this week, when talking about the prison for terrorists at Guantanamo Bay, he spoke about the "mess" he had inherited, and that in the days after 9-11 officials in the Bush Administration made "hasty" decisions "based upon fear rather than foresight."

Uh huh. He of course, is far too smart, and all of his decisions would have been perfect. The man is a legend in his own mind.

In his weekly radio address today he paid tribute to American troops throughout history who have paid the ultimate price, but just had to include a cheap shot at his predecessor (h/t Powerline):

And yet, all too often in recent years and decades, we, as a nation, have failed to live up to that responsibility. We have failed to give them the support they need or pay them the respect they deserve. That is a betrayal of the sacred trust that America has with all who wear - and all who have worn - the proud uniform of our country

But now that Obama is our president, the sky will open, the light will come down, celestial choirs will be singing, and everyone will know we should do the right thing, and the world will be perfect.

John Hinderaker at Powerline summed it up:

As Chris Stirewalt notes:
It gets little notice, but even to this day Bush makes calls on wounded veterans at military hospitals, corresponds with families of fallen servicemembers and gives his own money to veterans charities. In office, Bush hugely increased funding for veterans programs and worked relentlessly to improve the lot of ordinary troops.

It would be interesting to know how much of his own money Barack Obama has given to veterans' charities over the years. I'd hazard a guess: zero.

Obama's incessant attacks on the Bush administration tell us nothing about former President Bush, but a great deal about Barack Obama: the man has no class.

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January 5, 2009

The Israeli War on Hamas and Personal Responsiblity

Once again, here goes another post on the Middle East in which I have to check the "Moral Clarity" category box as well.

Of all the issues around the world, the Israeli-Palestine one is the absolutely most frustrating from this standpoint. It generates more moral confusion than any other. And let me be clear on this; I'm not talking about whether it was wise for Israel to attack Hamas, or Hezbollah in 2006. One can be morally clear on the issues and simply believe that there was another way to deal with the problem.

Here is a typical news story, this one from the AP

Israel ignored mounting international calls for a cease-fire Monday and said it won't stop its crippling 10-day assault until "peace and tranquility" are achieved in southern Israeli towns in the line of Palestinian rocket fire.

They never call for a cease fire when it's only Israel getting hit. Nor do they call it a "crisis", a word you see all over the news now that Israel is shooting back.

I could pick any of a hundred anti-Israel posts, but Glenn Greenwald, writing at Salon, is typical when he goes after pro-Israel blogger Michael Goldfarb of The Weekly Standard:

One should be clear that this sociopathic indifference to (or even celebration over) the deaths of Palestinian civilians isn't representative of all supporters of the Israeli attack on Gaza. It's unfair to use the Goldfarb/Peretz pathology to impugn all supporters of the Israeli attack. It's certainly possible to support the Israeli offensive despite the deaths of these civilians, to truly lament the suffering of innocent Palestinians but still find the war, on balance, to be justifiable.

Those who favor the attack on Gaza due to that calculus are certainly misguided about the likely outcome. And many war supporters who fall into this more benign category are guilty of insufficiently weighing the deaths of Palestinian innocents and, relatedly, of such overwhelming emotional and cultural attachment to Israel and Israelis that they long ago ceased viewing this conflict with any remnant of objectivity.

Greenwald is nicer than most of his sort in saying that it is "certainly possible to support the Israeli offensive despite the deaths of these civilians," but there's one big problem with his thesis.

The Palestinians aren't as innocent as he says they are.

A Brief History

Fist we need to set the stage.

In January of 2006 the Palestinians voted Hamas into power in the elections for the Palestinian Parliament, Hamas winning 75 seats to Fatah's 45. The electoral system is a bit complicated (see here), as some of the seats are awarded by proportionality and some by district. While because of these peculiarities (follow the link) Hamas didn't have quite the level of support the results would indicate, in the end a significant amount of people voted for Hamas.

In June of 2007, Hamas took complete control of Gaza in a bloody coup, killing who knows how many Fatah members and civilians (websites vary). They created their own government in Gaza, basically splitting the Palestinian Authority in two, with Fatah (nominally) in control in Judea and Smaria (the "West Bank").

Caroline Glick describes the run-up to the war in an interview with K-Lo over at The Corner

The fighting in Gaza today started about three weeks ago when Hamas renewed its rocket, mortar, and missile assault against Israel. Last June, Israel foolishly agreed to a six-month ceasefire with Hamas. Hamas used the time to have Iran double the size of its missile arsenal and double the range of its missiles, and to build up its Iranian-trained, armed, and financed Hezbollah-style army of 20,000 men. Hamas called its renewed offensive "Operation Oil Stain." On December 17, Hamas attacked Israel with more than 80 missiles, rockets and mortars. It took Israel ten days to finally respond to Hamas's assault, which for the first time put Israeli major cities like Ashdod, Yavne, Beersheva, and Gedera under assault.

Who is Responsible?

To varying extents, a people bear responsibility for their government. If it is a dictatorship, the people are only responsible to the degree that they try and resist it. I realize it's all very easy to talk about resisting tyranny from the safety of one's keyboard and from the perspective of the United States in 2009, but it's true nonetheless.

Certainly, though, if you vote that government into place you bear responsibility. And the fact is that when given the chance, Palestinians voted for Hamas. They got what they wanted. And let's be clear, Fatah isn't that much better. Their Al-Aqsa Martyrs Brigades are their terrorist wing, as they have been designated by the U.S. Department of State since 2002.

Here's the point - If you vote for terrorists as your government, and then they terrorize your neighbor, you have no legitimate reason to cry foul if your neighbor strikes back.

At least the Germans and Japanese had the decency not to pretend that they were the victims when we bombed and occupied their homelands.

Strangest of all, it is in the best interests of the Gazans that Hamas be destroyed. Ever since Israel withdrew from Gaza in August of 2005, they have basically had their own country. Not much of one, to be sure, and one beset with huge social and economic problems, but a country or homeland of sorts. They had a golden opportunity to show everyone that they could be a responsible self-governing entity. And they blew it.

Among other things the Gazans inherited in the wake of the Israeli withdrawal were more than 3,000 greenhouses, which could have been used to grow valuable flowers for export to Europe. American Jewish philanthropists even paid $14 million to save them from destruction by Jewish settlers so the Gazans could have them. And what happened? Many were damaged or destroyed by looters that the Palestinian authorities were helpless to stop, often because their security forces stood idly by.

They got their homeland, and they have made the worst of it.


This said, it is still incumbent upon nations to not directly target civilians. It is an integral part of Just War Theory. Now, I don't think that traditional JWT is completely applicable to our modern world. It needs updating. But the principal of discrimination, which basically says you cannot directly target civilians, is accepted by all civilized nations.

The whole issue gets complicated, and I urge readers to follow the links and read the whole thing themselves, but the salient point here is that Israel does not target civilians and Hamas does. Just because civilians are killed while attacking military targets does not mean that "Israel is killing civilians," because such a formulation implies that Israel is doing so deliberately.

In the end, the Gazans therefore bear some responsibility for what is happening to them. Critics need to stop pretending that they are totally innocent bystanders.

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December 30, 2008

Israel Hits Hamas in Gaza: "Disproportionate Force?"

The Jerusalem Post reports that despite the usual nonsense the UN, it would seem that Israel is doing well in the international media, if not outright ahead. The main reason seems to be that having learned it's lesson from the 2006 Lebanon War, Israel is doing a better job of getting it's message out. The reason for this is that their various government agencies, from the IDF to the Prime Minister's office and more, are offering a coherent, unified message, and are coordinating efforts much better than in the past.

This said, the criticism that is still out there is that the Israeli response is "disproportionate." French President Nicholas Sarkozy, also the President of the European Union, said that he "firmly condemns the irresponsible provocations that have led to this situation, as well as the disproportionate use of force." We've all seen multiple statements of this sort so there's no point in my posting more here.

So is the Israeli attack a disproportionate to Hamas' rocket attacks?

Before we answer that question, we need to ask the critics to come clean.

What exacrtly is the Objection?

Those who say the Israeli attacks, officially Operation Cast Lead, are disproportionate, need to tell us what they would have Israel do. I've surveyed leftist sites, as well as news media reports, and for the life of me I cannot find any concrete proposals. The most I get is that Israel shouldn't have attacked at all.

Any commenters here who say the Israeli attacks are disproportionate are advised to make clear what they would have Israel do.

The Just War

Just War Theory (JWT) is a specific body of thought that has built up over the past few hundred years. Primarily Catholic in origin, it is used by many today, Christian and secular, as a model for determining whether a war is just or not. At it's most basic, it can be broken down into two parts; Recourse To War (jus ad bellum) and Conduct In War (jus in bello).

The entire body of thought is quite complex, and for our purposes we will only consider that part of it relevant to the current charge against Israel, that of using force disproportionally (See my entire series on JWT here).

Proportionality comes up twice in JWT, once as part of Recourse To War, and again in Conduct In War.

Here are the essentials of what I wrote about Proportionality as part of Recourse to War

Proportionality in the decision to go to war means "...that the damage to be inflicted and the costs incurred by war must be proportionate to the good expected by taking up arms."

...we need to consider the cost of not resisting aggression.

...One must beware of a strict "cost-accounting" approach. Quality of life, or values, matters too. Who would accept life as a slave by any of the aforementioned tyrannies?

This is the type of stuff you can twist any way you like if you're not careful. Looking at all three criteria above:

The question in whether the cost of going to war is greater than the good expected depends on Israel's objective. If they just hit Hamas for a few days and then stop, Hamas retains it's strength and will continue it's rocket attacks. If they have a credible plan for ending Hamas' ability to launch attacks, then it seems more justified.

The cost of not resisting Hamas' aggression is not only more attacks with Qassam rockets, but an encouragement to Hamas to obtain larger, more powerful rockets. As we can see in the below chart (via Wikipedia), as it is the attacks have steadily escallated

Qassam Rocket attacks from Gaza

There have been reports for some time of Hamas attempting to obtain longer range rockets. From their standpoint, if Israel never responded, why not obtain and launch them?

One can say that the rocket attacks weren't killing very many Israelis, and it wasn't inconveniencing too very many of them. Quality of life is pretty subjective. One can also say that Hamas doesn't have the ability to destroy Israel, but that's only true if Israel sits back and lets them build up strength.

In the end, I say Israel is justified according to this criterion.

Turning to Conduct In War, here is what I wrote that is relevant to our discussion (quotation marks mean I am quoting Joseph Martino, see link above)

"The principle of proportionality with regards to conduct in war "deals not with a whole war but with a single military action in that war. The criterion requires that the good to be achieved by the action be proportionate to the damage done. Again, this means values preserved compared with values sacrificed, not a single cost-accounting of lives and dollars." ...

Giving our enemy a sanctuary is unacceptable. Yet we must not be callous and "hardcore" and simply state that any and all accidental civilian casualties are acceptable....

On the one hand, a "...we have to reject the view that simply concentrating the deaths in one location makes the total disproportionate when the same total would be proportionate if it were distributed widely." In other words, concentration or dispersal of civilian deaths is irrelevant.

On the other hand, "...the total values to be preserved by going to war, the values forming the basis for the jus ad bellum proportion, amount to a budget of values." This is not to imply a precision such as one has in financial accounting. Rather, we must keep in mind that there is a "total budget" available in a war, and we exceed it we risk making the entire war disproportionate.

In other words, "...we may not attack anything and everything of some military value in the enemy nation, simply 'because it's there'". Some people, of course, would have us do just that. We must reject that extreme view....

There's a lot to digest here. Despite a plethora of information from the media and other sources we see through a glass darkly, with the Nelsonian fog of war obscuring exactly what is going on. How precise are the Israeli strikes? How much care are they taking to avoid civilian casualties? The answer you get seems to depend on your source, and frankly I don't have the time to do a complete survey.

Hamas, like Hezbollah, deliberately locate their bases and stage their operations from civilian areas, knowing that no matter how precise the attack civilians will be killed. They do so for the most cynical of reasons; to get good propaganda. The world is catching on to these tactics, yet there are those who seem to think that they should be allowed what amounts to a sanctuary because any attack on them will result in civilian casualties. This view must be rejected.

In the end, I'll assume that Israel is taking reasonable care to only strike military targets. That civilians are killed is primarily the fault of Hamas.

An Israeli View

Dore Gold is a former Israeli ambassador to the United Nations 1997-1999) who is now President of the Jerusalem Center for Public Affairs (JCPA). Two years ago I reviewed the book he wrote about his experiences at the UN, Tower of Babel: How the United Nations has Fueled Global Chaos. The title pretty much says it all.

Call it biased if you like, but the JCPA has published a useful primer by Dore Gold explaining why in his opinion Israel is not using disproportionate force. Following are a few key excerpts:

* Israeli population centers in southern Israel have been the target of over 4,000 rockets, as well as thousands of mortar shells, fired by Hamas and other organizations since 2001. Rocket attacks increased by 500 percent after Israel withdrew completely from the Gaza Strip in August 2005. During an informal six-month lull, some 215 rockets were launched at Israel.

* The charge that Israel uses disproportionate force keeps resurfacing whenever it has to defend its citizens from non-state terrorist organizations and the rocket attacks they perpetrate. From a purely legal perspective, Israel's current military actions in Gaza are on solid ground. According to international law, Israel is not required to calibrate its use of force precisely according to the size and range of the weaponry used against it.

* Ibrahim Barzak and Amy Teibel wrote for the Associated Press on December 28 that most of the 230 Palestinians who were reportedly killed were "security forces," and Palestinian officials said "at least 15 civilians were among the dead." The numbers reported indicate that there was no clear intent to inflict disproportionate collateral civilian casualties. What is critical from the standpoint of international law is that if the attempt has been made "to minimize civilian damage, then even a strike that causes large amounts of damage - but is directed at a target with very large military value - would be lawful."

Look at the second paragraph again. JWT does not require exact tit for tat. What it requires is that you size the bomb (missile, whatever) to the target so that collateral damage is limited. As civilian casualties have been very low, we may infer that Israel has been careful to do just this.

More from the JCPA document

When international legal experts use the term "disproportionate use of force," they have a very precise meaning in mind. As the President of the International Court of Justice (ICJ) in The Hague, Rosalyn Higgins, has noted, proportionality "cannot be in relation to any specific prior injury - it has to be in relation to the overall legitimate objective of ending the aggression." In other words, if a state, like Israel, is facing aggression, then proportionality addresses whether force was specifically used by Israel to bring an end to the armed attack against it. By implication, force becomes excessive if it is employed for another purpose, like causing unnecessary harm to civilians. The pivotal factor determining whether force is excessive is the intent of the military commander. In particular, one has to assess what was the commander's intent regarding collateral civilian damage.

When most people talk about Israel using "disproportionate' force they are comparing the Israeli attacks to the Qassam rockets. But as shown above, this is not the correct comparison.

Further, as I asked above, those who make this charge against Israel need to come clean. Are they asking Israel to hit back tit for tat? They fire one missile to every one fired by Hamas? If so, doesn't this perpetuate the "cycle of violence" Israel's critics are always complaining about?

One last quote

There clearly is no international expectation that military losses in war should be on a one-to-one basis; most armies seek to decisively eliminate as many enemy forces as possible while minimizing their own losses of troops. There are NATO members who have been critical of "Israel's disproportionate use of force," while NATO armies take pride in their "kill ratios" against the Taliban in Afghanistan.

Bingo. We hear the charge that the United States uses disproportionate force against insurgents in Iraq and elsewhere. Would they be happy if more American soldiers were killed?

The long and the short of it is that most people who talk about Israel using "disproportionate' force don't know what they're talking about.


On December 7, 1941, Japan attacked the United States Naval base at Pearl Harbor. In the weeks and months to come, they attacked and overran our facilities across the Pacific, including Wake Island and the Philippines. The Japanese never had credible plans to attack the continental U.S., much less march into Washington D.C. Yet we sank every last ship in their navy, bombed their homeland into oblivion (this before the atomic bombs, ended their government and occupied their nation. Was our response, then, disproportionate?

On September 11, 2001, al Qaeda terrorists seized four civilian aircraft and crashed three of them into the World Trade Center towers and the Pentagon. Excluding the 19 terrorists, some 2,974 people were killed in the attacks. Neither al Qaeda nor their Taliban hosts had any credible plans to end our government and occupy our nation. Yet we ended the Taliban government and occupied their base country. I don't know the exact number of Afghan civilians killed by us, the insurgents, or through indirect causes, but it's a lot more than 2,974. Was our response, then disproportionate?


Of course our response to Pearl Harbor and the other Japanese aggressions were justified and proportionate, though one may dispute this or that U.S. bombing campaign. I think our fire raids on Tokyo were not justified, but without them Japan may not have surrendered, atomic bombs or no. Of course it was right and just for us to march into Afghanistan and end the Taliban as the government there and kill them and the al Qaeda, though again we may dispute this or that attack along the way.

The reason is that one does not proportion the response to the attack, but rather proportions it to what it will take to end the threat. In order to end the threat of Japanese fascism we had to end their government. The first step towards ending the threat of al Qaeda was to eliminate their sanctuary of Afghanistan. And in order to end the threat not only of Qassam and other rockets but of all terrorism from Gaza, Israel must eliminate Hamas as a fighting force, if not entirely.

Therefore, from what I can tell Israel is justified in using the level of force it has been using.

Update - January 1, 2009

Melanie Phillips has a much better post on this topic than I do, which is why she's a paid editorialist and I'm a hack blogger. Money quote:

If anything has been 'disproportionate', it's been Israel's refusal to take such action during the years when its southern citizens have been terrorised by rockets and other missiles raining down on them from Gaza. No other country in the world would have sat on its hands for so long in such circumstances. But whenever Israel defends itself militarily, its response is said to be 'disproportionate'. The malice, ignorance and sheer idiocy of this claim is refuted here comprehensively by Dore Gold, who points out that Israel's actions in Gaza are wholly in accordance with international law. This permits Israel to launch such an operation to prevent itself from being further attacked. Moreover, it defines 'disproportionate' force as when
force becomes excessive if it is employed for another purpose, like causing unnecessary harm to civilians.

But Israel has demonstrably not been targeting civilians but Hamas terrorists. Despite the wicked impression given by the media, most of the casualties in this operation have been Hamas operatives. Even Hamas itself has admitted that the vast majority of sites Israel has hit were part of their military infrastructure. UNRWA officials in the Gaza Strip have put the number of deaths at 310, of whom 51 were civilians. The rest were Hamas terrorists.

Read the whole thing.

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April 1, 2005

Just War Series - Proportionality II

Just War Theory - Introduction

Recourse To War - jus ad bellum

Conduct In War - jus in bello


This marks the last formal segment of my Just War Series. As it has given me much food for thought, however, I will do at least one more post on whether Just War Theory is adequate for our present day.

"The principle of proportionality with regards to conduct in war "deals not with a whole war but with a single military action in that war. The criterion requires that the good to be achieved by the action be proportionate to the damage done. Again, this means values preserved compared with values sacrificed, not a single cost-accounting of lives and dollars." (all quotes, and much material, Martino, unless otherwise noted).

We assume, of course, that all other criteria of a Just War are met. If one is violated, the entire war becomes unjust.

In Discrimination we said that one may not licitly make attacks in which noncombatants are directly intended to be killed". The question with regards to Proportion is how many civilians may be killed, even accidentally, before the action become illegitimate.

All this may seem macabre and unseemly. "How many we may kill" does make one wince, and properly so. As Herman Kahn said, however, we must not flinch from these issues, for they will arise, whether we like it or not. If we think them through before the war actually begins, at least we will have a dispassionate tool for evaluating our actions in the heat of battle. Unfortunately for me, the War on Terror is well underway, but that is something that cannot be helped. Better late than never.


Our enemies, not being stupid, know full well our moral qualms. Even since Vietnam they have taken advantage of our desire to keep civilian casualties to a minimum.

The North Vietnamese "deliberately located supply dumps in the middle of populate areas, in some cases simply stacking supplies in the mains streets of villages, confident that under the ground rules imposed on our bombing missions, those sites would not be attacked." And right they were.

As everyone knows, we have a similar situation in Iraq. The terrorists routinely hide in Mosques, and use women and children as shields. They play dead, or pretend to surrender, and then at the last moment reveal weapons and fire at us. Much of the world media advance their cause, deliberately or no, by playing up each and every alleged American violation, however small, while ignoring the blatant violations of the terrorists.

All this raises the question of whether we can or should grant our enemy a sanctuary. As Martino asks, "how many casualties are those supply dumps going to cause our side? Are we obliged to protect enemy civilians to the extent of completely avoiding attacks on enemy weapons, particularly when many of those weapons will be deliberately used in indiscriminate attacks that will kill civilians on our side?" Although written in 1988, Martino's words questions are relevant today.

Giving our enemy a sanctuary is unacceptable. Yet we must not be callous and "hardcore" and simply state that any and all accidental civilian casualties are acceptable. Martino answers his own questions by pointing out that

..providing the enemy with a sanctuary violates the rights of those who will be innocent victims of whatever the enemy places in the sanctuary. At the very least, we must weigh the values lost on our own side by permitting the sanctuary with the values destroyed on the enemy side by denying the sanctuary. Beyond this, however, we must include the values threatened or destroyed on the enemy side by the installation they have placed in the sanctuary. The continued reign of injustice on the enemy side destroys values among the victims of that injustice. Shortened or weakening that reign may well preserve more values than the attack destroys.
We can summarize the sanctuary issue by saying that the enemy need not be allowed to protect his weapons and other legitimate military targett with innocent shields. It may well be proportionate to attack an important target that the enemy has located in a densly populated area.
To this we may add lessons learned from our recent experience from Afghanistan and Iraq
  • Enemy civilians may become our civilians very shortly. In Vietnam, which was at the center of what Martino wrote above, there was little or no possibility that we would occupy North Vietnam. In the War on Terror, the objective is just the opposite with regard to occupy certain enemy nations; we wish to occupy them and reform their nation and government.
  • Allowing one sanctuary will only lead to the development by the enemy of more and more sanctuaries. We must remember that "the enemy is an animate object that reacts" (Clausewitz, I think).
Exact numbers are therefore not the point, although they must be considered. We must keep in mind that at times the cost in civilians will be too high for traditional attack. As with Discrimination, we may have to accept a higher risk to our own troops in order not to violate Proportionality.

Budget of Values

On the one hand, a "...we have to reject the view that simply concentrating the deaths in one location makes the total disproportionate when the same total would be proportionate if it were distributed widely." In other words, concentration or dispersal of civilian deaths is irrelevant.

On the other hand, "...the total values to be preserved by going to war, the values forming the basis for the jus ad bellum proportion, amount to a budget of values." This is not to imply a precision such as one has in financial accounting. Rather, we must keep in mind that there is a "total budget" available in a war, and we exceed it we risk making the entire war disproportionate.

In other words, "...we may not attack anything and everything of some military value in the enemy nation, simply 'because it's there'". Some people, of course, would have us do just that. We must reject that extreme view.

But there will be individual instances, such as with high value targets, when we may exceed our "budget" for any one operation. For example, in Fallujah, we destroyed a terrorist base, but at great cost to the surrounding infrastructure. American policy-makers reckoned that in this case the cost was worth it. Earlier in the war, we decided not to attack Mullah Sadr as we thought the cost too high. It is important to note that there is not an exact formula, and reasonable people can disagree about individual cases, but we must try to adhere to the general concept.

No Precision

As I have said throughout this series, there is no precise formula to Just War Theory. Reasonable people can and will disagree on interpretations. But the point is to agree on a general framework for discussion.

Proportion Before and During the War


In summary, then, the jus ad bellum criterion of proportion says one mustn't go to war unless the values to be preserved by the war exceeded the values to be sacrificed. Within the war, the jus in bello criterion of proportion says that when one takes action against enemy military units or installations, the values sacrificed in the attack must not exceeded the values that would be threatened by the continued existence of the target.

Current Events

United States and coalition actions in Afghanistan met the test of proportionality.

Proportion is not simply revenge, so talk of "they killed 3,000 of our people, we're justified in killing 3,000 of theirs" is out of place. We did not invade Afghanistan to take revenge for September 11. We did it to prevent another one. As such, we were justified in denying our enemy a sanctuary.

In Iraq we have adopted a "budget of values" approach. In Fallujah we "spent" a lot when we staged a full-scale attack on the terrorist army. In other places, such as earlier in Sadr City with Mullah Sadr, we held back our forces, believing that a full-scale attack would cost us more than we would gain. Clearly, if we had wanted to simply subdue Iraq, we could level a lot most of the country. All of the intense criticism directed at US commanders for their alleged failure to deal severely with thorns like Mullah Sadr demonstrate the restraint that we have practiced.

While it has taken some time, the full benefits of our actions in both countries are now beginning to be seen. With the success of the elections in Afghanistan and Iraq, we are seeing an "Arab Spring" throughout that region of the world. While of course it is too early to draw ultimate conclusions, or to say with certainty as to what the final result will be, one cannot escape the conclusion that the benefits to our invasions have been much greater than we had originally hoped.

That we did not find the WMD that we expected to find changes none of this. Contrary to left-wing conspiracy theorists, all reports indicate that the administration acted in good faith. Given the intelligence reports that they had to work with, the President and his advisors had good reason to believe that Saddam had stockpiles of chemical and biological munitions.

Next up: Summary and Reevaluation of Just War Theory

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March 2, 2005

Just War Series - Discrimination

Summary and Outline

Introduction to Just War Theory

I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality

II. Conduct in War - jus in bello
  1. Discrimination
  2. Proportionality

"The principle of discrimination means that one may not licitly make attacks in which noncombatants are directly intended to be killed" (all quotes, and much material, Martino unless otherwise noted).

The words "directly" and "intended" are critical. However, before we can even discuss these concepts, we must sort out what constitutes "combatant" and "noncombatant" status. We will also cover "illegal combatant."

Combatant versus Noncombatant

It is obvious that members of the armed forces are combatants. Beyond that, however, it gets murky.

The bellicist (opposite of pacifist) position is that "they are all guilty", that is, all citizens of the nation with which we are at war are guilty of aiding the war effort and are thus subject to attack. This was, in fact, the position that we took during World War II. The allies conducted bombing attacks on Japanese and German cities without much regard as to whom we hit. We justified this by reasoning that civilians were supporting the war effort, thus they were targets. Besides, the enemy had no compunction about attacking our civilians.

Now, of course, the vast majority of Westerners have rejected this extreme view. Only a few, such as Ward Churchill, still adopt it. Paradoxically, he and others like him take the position that it is us who are "all guilty" and thus deserve to be attacked. I'll not deal with the absurdity here, as it will be evident to most readers.

A "middle" position is that workers in certain industries are legitimate targets. This position is more of a sliding scale, with some arguing that only workers who manufacture armaments are targets, while others include any industry that might aid the enemy war effort, such as power plants.

But this is still unsatisfactory. Can we not attack the factories and transportation facilities themselves without directly targeting the civilians working there? We'll get to the specifics of this later, but for now, let's clear up this issue of combatants versus noncombatants:

  1. "The issue is not that noncombatants in some mysterious way gain an immunity against attack which their fellow-citizen combatants lack, but rather that they retain the immunity against attack that is 'a feature of normal human relationships'"
  2. Also, that only those who actively take up arms against us are to be considered combatants (whether legal or illegal combatants does not matter. For a further discussion see below)

Can Civilians be Killed?

The answer is yes, but only if certain conditions are met. We will divide the problem into two parts; the number of civilians that may be killed, and the other with "what actions the attacker takes to discriminate between combatant and noncombatant." The former is part of Proportion in war, and will be considered in the next post. We'll discuss the latter here.

An attacker must not only recognize that there is a distinction between combatant and noncombatant, he must adjust his actions accordingly.

The Principle of the Double Effect

This principle is used to judge a situation in which an action intended to produce a morally right effect, also produces an effect that is immoral if directly employed. In other words, if the second effect is not directly intended, the action is moral. The immoral, or "bad" effect must not flow directly from the moral, or "good", action. Put in even more plain terms, one may take a moral action, even if there is an immoral side effect, as long as that side effect is not directly intended and one attempts to minimize it. One may not take an immoral action, even though good may come of it.

The classic example is that of the munitions factory. We are justified in bombing the factory, even though civilians may be killed in the process. We are obligated to make serious attempts to minimize those civilian casualties, however. For example, we may decide to bomb at night, when the factory is closed, or we may use precision bombs so as to avoid as much as possible damage to surrounding neighborhoods. Reasonable people can disagree as to the extent of our obligations here, but the point is that they exist and must be taken into account.

On the other hand, suppose for purposes of illustration that our enemy has hidden the factory deep underground where our bombs cannot reach it. Would we be justified in bombing the civilian workers homes? After all, this would have the good effect of ending production at the factory. The answer, of course, is no, we would not be justified in bombing their homes. The reason is that directly attacking civilians is immoral.

An attacker must genuinely not want to kill civilians. Killing civilians must be genuinely unwanted. We may permit it to occur, we may even foresee it's occurence, but that is not the same as directly attacking civilians or even carelessness. In practical terms, we may not fire missiles and drop bombs at random and use the excuse "we didn't mean to kill civilians." A conscious effort must be made.

Accepting Some Risk

Some have suggested that one measure of whether an attacker is keeping with the bounds of discrimination is if he is willing to accept some degree of risk to himself.

The key, of course, is "how much risk?" This runs the gamut from "none at all!" to "we must go out of our way to avoid excess damage and casualties."

As an example of the former, I recall during the run-up to the Gulf War, Ross Perot advocated the use of nuclear weapons against Iraq so that no American would run the risk of losing their lives. Although I cannot recall an analogous situation in the Iraq or Afghanistan campaigns, I'm sure the occurred. Likewise, in Bosnia President Clinton ordered our airmen to bomb from a considerable height so as to minimize the risk to them. Although to my knowledge no Americans were killed, the result was a less-than-ideal result from the bombing campaign.

On the other hand, there are constant cries from "human rights" organizations that we are not doing enough to protect civilian lives and minimize damage. The Unites States is acused of carelessness or worse.

The reality is that our forces are usually somewhere in-between these two extremes, but from all of the information that I read we are actually closer to the latter, whereby we assume great risks to avoid unnecessary damage and casualties. I have read story after story about how our forces have been subjected to withering fire from the enemy (often inaccurate, but surely nerve-wracking), yet holding their own fire until certain of their targets.

One resolution to the query "how much risk?" is offered by Martino. When the United States goes to war with a tyrannical government, such as Nazi Germany, Imperial Japan, Ba'athist Iraq, or, as a theoretical, Communist Russia, the citizens of that nation are not the beneficiaries of that tyranny but rather it's victims. It is incumbent on them to oppose that tyranny to some degree. In other words, they, too, should share some of the risk. After all, our victory is their victory, whether in the heat of battle they realize it or not. By this same token, we have an obligation to try and minimize civilian casualties, since they are our natural allies.

As mentioned, the citizens of the countries with which we are at war bear some responsibility for their situation. To some degree, every people is responsible for their own government, whether it is a tyranny or a democracy, to the extent that they tolerate the actions of that government. In other words, they have some responsibility to revolt or resist against that government.

The conclusion is that we need accept no more risk than the people of our enemies government assume themselves in resisting that government. How much risk this translates into is a matter that reasonable people can debate, as long as they keep the central principle in mind.

Applied to Iraq, this would mean that our obligation to avoid civilian deaths and damage was initially proportional to the Iraqi peoples reisitance to the Saddam Hussein government, and later to the amount of cooperation that we receive from them in defeating the terrorists. Since in the former there are many, many examples of resistance, and in the latter they have become very cooperative, we are under a great obligation to discriminate when we use force.


The type of target we attack is part of discrimination. Possible targets run the range from military units and their bases, to munitions factories, and finally to civilian power plants and bridges. While no serious person would argue against attacking targets in the former two categories, the latter presents unique problems. During the Gulf War we attacked Iraqi power plants, bridges, telephone exchanges, and more. While these affected the ability of their military to carry out it's mission, they also had a negative impact on the civilian population.

During the invasion of Iraq, we abstained from attacking these civilian targets. Was it right to attack them in the former, yet not in the latter, instance?

The justification for attacking them in the Gulf War was that we could hamper the ability of the Iraqi military by destroying them. The rational for not attacking them in the invasion was that A) we could destroy the Iraqi military without destroying the civilian infrastructure (the result of technological advances on our part), and B) because our objective this time was to occupy the country, and did not want to alienate the civilian population.

Selection of Weapons

The last aspect of discrimination is sizing the bomb to the target. We must discriminate between the target and it's surroundings. We must take reasonable care to avoid unnecessary damage to civilian structures, even if they are in close proximity to the target.

With targets on land, we typically do this by examining what it would take to destroy the target, looking at surrounding civilian structures, and even taking into account the time of day when civilians are most likely to be in the area. We then look at the weapons in our arsenal that would destroy the target, and judge how much damage they might also cause to surrounding civilian structures and people. We choose the smallest weapon available that will both destroy the target and minimize damage to civilians. This might even mean firing the missile or dropping the bomb from a particular angle.

In the case of a warship at sea, this principle comes into effect, since there may well be commercial freighters, cruise liners, and other vessels in the vicinity. Modern weapons, such as the American Harpoon anti-ship missile, are "fire and forget" weapons, with a range in the tens of miles. Once launched, their radar seekers will lock onto the largest "blip," whether this is an enemy ship or innocent fishing trawler. We must therefore take care when using these weapons that there are not civilians in the vicinity.

Sizing the weapon to the target, and exercising care in using the weapon, means accepting some risk to our own forces. How much risk we need take is always debatable, but to stay in the bounds of acceptable behavior, we need to accept that we do need to accept some risk.

Illegal Combatants

I discussed the issue of illegal combatants in an earlier post, so will only summarize here. Essentially, Article 4, Section A2 of the Geneva Convention relative to the Treatment of Prisoners of War provides that:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

My point here is simply to point out that anyone who attacks US forces or civilians are themselves subject to attack, and that discriminating between them and civilians may be quite difficult. Whether they are legal or illegal combatants does not matter in this context. The principle of discrimination only means that we must take care in pursuit of illegal combatants and exercise care in our military actions.


It is said by some that economic sanctions, by their nature, are indiscriminate. That is, they are by definition applied to the entire population, and thus hurt innocents, not just the rulers.

In the 1990's , the United States and our allies attempted to get around this by use of the "oil-for-food" program. The idea behind this was that the Iraqi people would receive the food and medical care they needed, while depriving the regime of money to buy weaponry and material for WMD production.

Oil-for-Food was a laudable idea. That it is evident now that it was rift with corruption, however, makes one pause before recommending it as a model for future sanctions programs.

Most Just War theorists that I have read tend to frown on broad-based sanctions if they hurt the general population. They tend to favor targeted sanctions, such as those that are meant to prevent acquisition of WMD. However one comes down on this issue, it is clear to me that much more hard thinking is required before an acceptable model is found.


This is obviously a complicated subject with much room for disagreement. As I have stated, in many instances reasonable people will be able to disagree and still stay "in bounds." Whatever we decide in any specific instance, policy-planners must be cognizant of the principle of discrimination and avoid decisions made in anger or haste. Certainly soldiers in the heat of battle will make mistakes, but training can reduce this. However, in the end, we should be proud that we hold ourselves to a higher standard than our enemies can ever imagine.

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February 28, 2005

Just War Series - Proportionality

Summary and Outline:

Introduction to Just War Theory

I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality
II. Conduct in War - jus in bello
  1. Discrimination
  2. Proportionality
In this post we will discuss proportionality as it relates to the decision to go to war. Proportionality is also a criterion for actions taken in war. First we will consider them separately, and then how they are related.

Proportionality in the decision to go to war means "...that the damage to be inflicted and the costs incurred by war must be proportionate to the good expected by taking up arms." (all quotes Martino unless otherwise noted).

In an older time the discussion of proportionality in this context centered around reasons for going to war that are usually considered unjust today; pure retribution, "vindictiveness," or collecting debts in default. Much of the discussion had to do with punishment; does the good that would come from punishing the unjust outweigh the damage that would be incurred? Further, only the damage done and lives lost on "your side" were considered; no one cared much what happened to the enemy population.

In modern times, we in the West truly consider whether the damage done and lives lost on both sides justify the good that we hope will result.

Defending against Aggression

It may seem obvious to some of us that "of course we should defend against an invading force." And sometimes this is the case. As we shall see, however, the issue gets complicated.

After all, the cost of defending against aggression can be quite large. Consider the number killed in the two world wars of the twentieth century:

World War I: 5 million military and 3.5 million civilians for the allies, (3.3 million military and 8-9 million civilians for the Central Powers).

World War II: 12 million military and 24 million civilians for the allies ( 6.3 million military and 1 million civilians for the Axis powers) 52 million military and civilian total for both sides.

Yet even the 52 million deaths of the Second World War would have paled beside a nuclear war involving the West, the Soviet Union, and China (which, depending on the timeframe, would probably have been dragged in). Hundreds of millions if not a billion or so lives would have been lost. Would it have been worth it?

Many decided no. "Better Red than Dead" may have been the rallying cry of the far left, but it found sympathizers across the political spectrum. Political leaders in the West convinced the voters to allow them to build tens of thousands of nuclear weapons during the years of the Cold War. Given the frightening aspect of nuclear war, one might say we were lucky to have gotten away with it for so long. Certainly, by the 1980's, the decision to beef up our defenses with the addition of intermediate range missiles (Pershing II and Ground Launched Cruise Missiles (GLCMs)) was highly controversial and provoked a large "peace" movement. That planners faced determined opposition despite a pre-existing Soviet arsenal of highly capable SS-20s speaks volumes as to the perceived cost of war versus a status akin to "Findlandization."

The Cost of Not Resisting

But in order for the above discussion to be meaningful, we need to consider the cost of not resisting aggression. A Europe run by Hitler's Germany is too horrible to imagine, and once he got nuclear weapons and long-range missiles... one trembles at the thought. A Pacific Empire run by the perpetuators of the Rape of Nanking is not a pleasant thought either.

What if the United States, or at least Western Europe, had peacefully submitted to the Soviet Union? To get an idea of what we would have been in for, let's see how many of their own people communist governments killed. The Black Book of Communism states that USSR killed some 65 million, China 35 million, and the "lesser" communist countries a few million more. The mind boggles at the statistics.

The point, of course, is that we would have suffered terribly had they taken us over peacefully. We may well have ended up both red and dead.

One must beware of a strict "cost-accounting" approach. Quality of life, or values, mattesr too. Who would accept life as a slave by any of the aforementioned tyrannies?

Thus, even fighting a nuclear war with one or another of the communist tyrannies meets this test of proportionality.

When it's Not So Simple

Still, it may be said that the above examples are obvious. It isn't always this simple.

The Falklands War - In 1982 the military junta that ruled Argentina invaded the Falkland Islands. The Falklands were small islands of the Argintinian east coast than were owned by the UK, and on which lived several thousand Britains (The Argentineans called them the Malvinas). Given that the Argentinean junta was no Hitlerian regime, that the islanders would have been allowed to leave peacefully, and that much blood might be lost in an attempt to retake the islands, one may argue that the decision of Prime Minister Margaret Thatcher did not meet the proportionality test. Indeed, had the British lost more ships public opinion might well have turned against the war. At what point is it not worth it anymore? I believe that the war was worth it, and that the British did the right thing. My point here is simply to pose question; at what price?

The "Breakaway" province - The American Civil war is the obvious example, but what about Great Britain and Northern Ireland, or Spain and it's Basque region? In the latter two examples the provinces have not quite broken off, and there are plenty in each who want to stay with the home country, but at what point does it not become worth it anymore? I'll not try to answer these questions here, as I have neither time nor sufficient knowledge, but here again my purpose is to provide a framework for thought and discussion.

Syria and Iran - Today we see them aiding the insurgent terrorists in Iraq. Much of the debate over whether we should attack Syria or Iran can be framed in terms of proportion; would the death and destruction, not to mention the risk of creating a wider war, be worth the benefits of success?

Afghanistan - If we had simply been after a small band of ragtag terrorists capable of one attack only, if our invasion had been modeled on that of the Soviets, and if we had thus caused tremendous damage and killed lots of people, one might say that we had not met the test of proportionality. That the reality has been different in every particular means that we have in fact met this test of proportionality

Iraq - Did our invasion pass this test of Just War Theory? I think it did. The military invasion was a magnificent work whereby we destroyed the enemy forces in the minimum time and ended major combat operations in the shortest possible time. This lightning attack, coupled with the careful use of precision weapons, kept casualties on both sides, and damage to a minimum. Obviously we killed many enemy soldiers (regulars and irregulars), and just as obviously civilians were killed also. By any historical standard, however, the war was and is a model of proportionality. Even this current war against the insurgent terrorists, when cities such as Fallujah suffer much damage during operations, pales besides historical examples. It passes this first test of Proportionality because the good that has come from our work is before our eyes every day: the announcement by Libya that they would now truly give up their WMD (and by all accounts they have), the elections in Iraq, new elections in Bahrain and Saudi Arabia, the announcement that opposition candidates would be allowed in Egypt, and I'm sure many other examples I can't think of at this time.

Next Up - Discrimination, which is the first test of Part II, Conduct in War

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February 14, 2005

Just War Series - Probability of Success

Summary and Outline:

Introduction to Just War Theory

I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality
II. Conduct in War - jus in bello

1. Discrimination
2. Proportionality

There must be a reasonable probability of success (victory) before a way may be considered just. This does not mean that victory must be certain, only that one must not start a war unless there is a reasonable probability of success. Offensive wars fought in vain are traditionally considered unjust.

The Meaning of Victory

First we must define victory. It has been my observation that all too often people see warfare and victory in terms of World War II; invasion of a country, total defeat of it's armed forces, capture of it's capital and leaders, and occupation of the country until a new government is installed. As an accident of history would have it, we live in a time in which we are involved in another such total war in Iraq. It would be a mistake, however, to view all war as if it occurred this way.

The reality is that most wars are fought using limited means for limited goals. "Total War" is the exception, not the rule. Rarely does victory involve the total destruction of the enemy and occupation of his homeland. Nineteenth century Prussian general turned military and political philosopher Carl von Clausewitz wrote that

In war many roads lead to success, and...they do not all involve the oponent's outright defeat. They range from the destruction of the enemy's forces, the conquest of his territory, to a temporary occupation or invasion, to projects with an immediate political purpose, and finally to passively awaiting the enemy's attacks....

Bear in mind how wide a range of political interests can lead to war, or ...think for a moment of the gulf that separates a war of annihilation, a struggle for political existence, from a war reluctantly declared in consequence of political pressure or of an alliance that no longer seems to reflect the state's true interests. Between these two extremes lie numerous gradations. If we reject a single one of them on theoretical grounds, we may as well reject all of them, and lose contact with the real world.

The point, of course, is that the definition of what constitutes victory depends on one's objectives, and the objective need not be total war. It need not even involve actual fighting. Clausewitz explains:
Combat is the only effective force in war; it's aim is to destroy the enemy's forces as a means to a further end. That holds good even if no actual fighting occurs, because the outcome rests on the assumption that if it came to fighting, the enemy would be destroyed.
(emphasis added) In other words, if we can achieve our goal with a credible threat of force, then so much the better.

Therefore, to determine the probability of success, one must ask, "Success in achieving what objective(s)?"

Pyrrhic Victory?

In the past many or most nations were generally not so concerned with the amount of damage that they caused to an enemy, as long as the objectives were met. There are many reasons for this, not least among them is the advent of television which brings the horrors of war to your living room in living color. It is not our purpose here to examine this, but to examine the concept of victory in our modern age.

World War II was perhaps the last war in which major democracies could wantonly and deliberately kill huge amounts of "enemy" civilians, and cause tremendous damage to the enemy's homeland without domestic repercussions.

Even with precision weapons and careful targeting, civilians will be killed and property will be damaged. We do try and limit this, but it will occur (Note; we will discuss this in detail in Part II of this series, Conduct in War: Discrimination and Proportionality). Success in war is to a large extent dependant on how it is reported, and opinion counts, not just at home but abroad. Now, it is equally true that no matter what we do, many will believe the worst about us, encouraged by news outlets such as Al-Jazeera. The point is that we must be cognizant of domestic and world opinion as never before, and therefore must take as many precautions as possible against unnecessary damage (again, this will be discussed in detail in future posts)

So today we do not simply ask "victory at what cost to us?" but "victory at what cost to us and to the enemy?"

Better Dead than Red?

One question that theorists used to struggle with is whether it is just to put up a defense if defeat is all but certain. Back when few if any countries were representative democracies one could reasonably ask if "defeat was all so bad" when compared to the amount of death and destruction that would occur in a war. One could do a utilitarian analysis and come up with an answer in mathematical terms.

During the Cold War, many debated over whether victory had any meaning in an age in which nuclear weapons could kill most or perhaps all of the citizens of the warring nations. Since this scenario is largely behind us, and would take much space anyway, so we will not consider it here.

However, we may well go to war with a nuclear armed China, North Korea, or Iran. Would we be justified in going to war over Taiwan, for example, when there was a chance (however small) that we might lose Los Angeles (as a Chinese general once threatened)? I will try and answer this and more questions in future posts.

War on Terror

As we saw in a prior post, a war declared only to exact retribution is unjust. With regards to terrorism, war may be declared to prevent future terrorist acts. Al Qaeda operated from Afghanistan, and had a declared intent to do as much damage to the United States and our interests as possible. They also had a history of staging attacks against us ( ex: possibly the first World Trade Center bombing, our Embassy in Kenya, the USS Cole) we were justified in going to war to destroy them and their Taliban protectors. By doing so we reduced their ability to conduct future operations.

It is also just to take even preemptive action to destroy terrorist bases and those who harbor them. If we determine that other nations are harboring terrorists who wish to harm us or our allies, we would be just in destroying them (as long as all other criteria of Just War are met).

The Iraqi War

One can only make decisions using information available at the time. One cannot make decisions based on information that only becomes available later. I realize this sounds obvious, but as some seem not to understand these concepts they need to be said.

The relevant question, therefore is: Did the war advocates have reasonable cause to believe that a war would be successful?

In light of the criterion outlined above, my answer is "yes." Given the information that we had available at the time, we had a reasonable expectation of success. We had reasonable expectation that we could find and destroy Saddam's WMD (which we had good cause to believe existed), destroy his armed forces, and set up a representative government.

Like all wars in history, the Iraq War has not turned out exactly like the planners had hoped. Then again, it hasn't turned out totally differently, either. The planners got some things exactly right, like the ability of the U.S. military to destroy the Iraqi military (this contrary to some critics; remember the "Battle of Baghdad" that never took place?).

However, the size and scope of the terrorist insurgency was not anticipated. Further, it has been harder to get a representative government in place than we anticipated (and success is still not assured). Few anticipated that the Iraqi strategy would be to go over to guerilla/terrorist warfare, and even if they had, it wouldn't have mattered, for I believe that we are indeed on the way to defeating them anyway.

It is impossible to fight a war and totally avoid civilian casualties and destruction of property.
However, we have made vast strides since Vietnam, let alone the Second World War. Our forces to go great lengths to avoid unnecessary death and destruction, as is evidenced from a perusal of honest sources about the war.

Further, although it is not clear that war advocates were too optimistic with regard to support from the Iraqi people, the recent elections demonstrate clearly that they are on the road to success.

All in all, therefore I believe the war in Iraq meets the Just War requirement of Probabililty of Success


Blogger Mark O asks

How about the American Revolutionary War? Given the size and strength of the British Empire at the time, we had no reason to expect success unless the English were sufficiently distracted by foreign powers, i.e., the French. However one could argue that at the outset we had little cause for believing in a probability of success in that war. Was it Just?
Excellent question. I believe the answer lies in whether the Founding Fathers had reasonable cause to believe that they would be successful.

According to the article on the American Revolution in Wikopedia, in 1775 the British had a standing army of about 50,000 men. During the course of the war, they were able to hire 30,000 Hessian mercenaries. However, the total British strength in America never exceeded 32,000 at any one time.

As for the Americans, Perhaps 250,000 Americans served as regulars or militia men during the war. The maximum serving at any one time, however, was never more than 90,000. Washington himself never commmanded more than 17,000 in his Continental Army at any one time.

We never had much of a navy, only sending forth small ships and frigates, whereas the British had the most powerful navy on earth. The advantage to the British was twofold; they could move troops up and down the coast at will, and they could wreck trade and imports of arms from Europe.

According to another article, here are the advantages each side enjoyed:

--British advantages

*Stronger navy

*Better trained army though officer corps not at same level of expertise as naval officers. Army officers were promoted not on merit, but by purchasing their ranks.

*Financial structure

*25%-33% of Thirteen Colonies= population, called Loyalists or Tories, probably supported the British (plus another third of population who would waver until they saw which way things are going-thus if Britain achieved battlefield victories, these undecideds would stick with the crown). Probably 30-50,000 Loyalists fought with the British.

*Motivation: questionable, had to hire German mercenaries (Hessians) to fight.

--American advantages

*Conditions of victory more easily achievable-- British must achieve outright victory, Americans must merely avoid losing.

*No center of gravity exposed to British

*Militia availability

*Britain had to utilize navigable rivers in order to supply troops.

*Britain had world responsibilities to cover at the same time.

*Motivation: fighting for their lives and for a cause

*Selected foreign officers came to support the patriot cause (Lafayette, von Steuben, de Kalb)

* Leadership of George Washington

How aware of all this were the Founders? I found a 1777 letter by Alexander Hamilton that suggests that they did believe that they had a reasonable probability of success. Here are some relevant excerpts:
We should not play a desperate game for it or put it upon the issue of a single cast of the die. The loss of one general engagement may effectively ruin us, and it would certainly be folly to hazard it, unless our resources for keeping up an army were to end, and some decisive blow was absolutely necessary; or unless our strength was so great as to give certainty of success. Neither is the case: America can in all probability maintain its army for years, and our numbers though such as would give a reasonable hope of success are not such as should make us intirely [sic] sanguine. A third consideration did it exist might make it expedient to risk such an event-the prospect of very great reinforcements to the enemy; but every appearance contradicts this, and affords all reason to believe, they will get very inconsiderable accessions of strength this campaign. All the European maritime powers, are interested for the defeat of the British arms in America, and will never assist them.
On whatever side it is considered, no great reinforcements are to be expected to the British army in America.
On our part: we are continually strengthening our political springs in Europe, and may everyday look for more effectual aids than we have yet received. Our own army is continually growing stronger in men arms and discipline. We shall soon have an important addition of Artillery, now in its way to join us. We can maintain our present numbers good at least by inlistments [sic], while the enemy must dwindle away; and at the end of summer the disparity between us will be infinitely great, and facilitate any exertions that may be make to settle the business with them.
Certainly the war could have gone either way. I'm no expert and don't have time to do a thorough analysis. Many Founders were quite nervous about war with Britain and I'm sure someone can unearth letters to that effect. My brief research and knowledge of the subject says that the Founders had reasonable cause to believe that they would be successful.

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February 8, 2005

Just War Series - Last Resort

Introduction to Just War Theory

I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality

II. Conduct in War - jus in bello

1. Discrimination
2. Proportionality

"Last Resort" is a term that is thrown around quite a bit by politicians and punduts on the even of a possible miliarty action. The purpose of this post is to examine what it means in the light of Just War Theory.

The Last Resort test means that a state should exhaust peaceful alternatives. But what does this mean? There are three things that we need to consider

1) Nations are unwilling to put their vital interests in the hands of third parties such as the United Nations or World Court.

We are currently embroiled over the issue of whether the United States had to get United Nations Security Council authority to invade Iraq. All of the talk about how we supposedly violated international law misses the point; no nation on this planet will, in the end, put it's most vital interests in the hands of any third party.

Many of the nations who proclaim their fealty to such institutions do so because they cannot imagine themselves in a situation where their vital interests are in such danger that war is necessary, or because they cannot imagine a situation in which their "allies" will seriously disagree with them. They have lost their sense of history, and imagine themselves forever secure in a the utopia of the "international community." But in the end, when the chips are down, nations will "do what they have to do" to protect themselves, and not consider the opinions of others.

At home, many of the critics simply see their own country as the greatest danger in the world, and see international institutions as the only restraint available.

2) Some differences are irreconcilable

People who are schooled in "negotiation theory" may fall into the trap of assuming that all problems can be resolved, or at least a clash averted, "if we only sit down and talk about it in good faith." They tend to see wars as the result of misunderstandings, and the solution in terms of setting up cultural exchanges.

Books like "Getting to Yes: Negotiating Agreement Without Giving In" and it's counterparts work only with both parties share a similar worldview, and agree that matters can and must be solved without violence. It is an excellent tool for negotiating conflict within the West. But it is misused when people think that such techniques work in the international arena.

Ultimately there are some differences that cannot be negotiated. There are some disputes that cannot be resolved at the bargaining table. There are some ideologies that are fundamentally at odds with each other. While we must never rule out negotiations, we must not be at their mercy either.

3) Lets try One More Thing....

More newspaper print has been spilled over the idea of war as a "last resort" than any other aspect of Just War Theory. It is easy to say that we should negotiate and try to resolve our differences peacefully and only resort to war when all else fails. But what does this mean? How many economic sanctions must we put in place and how long must we let them work before giving up? How many Security Council resolutions are enough? One writer reminds us that "Lastness is a metaphysical concept that is never really achieved, because another effort to avert war can always be attempted."

These are questions that reasonable people may disagree about. There are some who want to start bombing at the drop of a hat, and others who will seemingly never approve force unless Washington DC is being stormed.

Some say that "last resort" is automatically violated whenever one talks about preemptive war. It is said that we must wait until a strike against us is "imminent".

It seems to me that such an attitude is more in tune with a World War I view of war, whereby nations took weeks or months to mobilize. Even by mid-century, most nations would have some warning. Nuclear strike aircraft and missiles demolished this view. Even though those days are mostly gone, it seems to me that with modern technology regional (or even smaller) powers certainly have the capability to strike us with little or no warning.

The bottom line is that there is no right answer to the question of "last resort", except that we must reject the extremes of those who would go to war quickly, and those who would have us never act.

Posted by Tom at 9:52 PM | Comments (0) | TrackBack

February 2, 2005

Just War Series - Right Intention

Introduction to Just War Theory
I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality
II. Conduct in War - jus in bello
  1. Discrimination
  2. Proportionality
Right Intention means that not only must we have sufficient cause to enter into war, but we must have the intention of seeking a just and lasting peace.

Note: As a basis for this series I am using as my primary source Joseph Martino's 1988 book A Fighting Chance. See more about this in the Introduction to Just War post.

There are three elements of right intention;

  1. Limiting oneself to pursuit of the just cause
  2. Keeping in mind that the ultimate objective of the war is a just and lasting peace
  3. Maintaining charity and love towards the enemy
Let's examine each of these one at a time.

The first element means that you cannot add objectives or justifications as the war progresses. The classic example is the Korean War. Our original objective was simply to repel the North Korean army, which had invaded our ally in the south. After the successful landings at Inchon, and the collapse of the North Korean army, we expanded our objectives to include the reunification of the entire peninsula. By doing so we violated this rule of Just War Theory.

In regard to the second element, that of achieving a just and lasting peace, there are several factors that come into play.

First, we must not take actions that cause unnecessary suffering or damage. This will be explored further when I take up Conduct In War.

Second, surrender terms must not be so harsh so as to unnecessarily prolong the war. This is generally taken to mean that unconditional surrender violates this criterion of Just War Theory. World War II is our first example. By demanding unconditional surrender, the allies gave the enemy no reason to do anything other than fight to the death. The issue also comes up with regard to "tinpot" dictators who are faced with an insurgency or coup. They are cornered with cadre of loyal defenders. The rebels have a choice; end the standoff by letting the dictator leave the country, or stage an all-out attack. The dictator escapes justice with the former, but lives are saved. Justice is served in the latter, but questions arise as to whether it was worth the cost. Generally speaking this criterion of Just War Theory asks us to let the dictator go in order to save lives. Note: This is a general rule and as circumstances will vary from case o case, letting the dictator go may be unjust in some circumstances.

Maintaining charity and love towards our enemy may seem strange, but it is perhaps the most important requirement of all. Never must we allow ourselves to resort to racial epithets, or describe our enemy as "subhuman." We must maintain our standards regardless of the savagery of our foes. To be sure, on the actual battlefield passions will be excited to the point where we must excuse our soldiers for engaging in talk or some actions that are not acceptable in polite society. Those of us safe in our homes have no such excuse.

Application to Current Events

It is clear to me that the United States has met the requirements of Right Intention in the invasions of Afghanistan and Iraq.

In the case of each country we have expended great amounts of blood and treasure in order to install democratic governments that reflect the will of their people. Throughout most or many of our interventions in Central and South America, for example, we were happy with a strongman who was friendly towards us. This also became our de facto policy in South Vietnam. And we tolerated "authoritarian" regimes in the Philippines, South Korea, and Taiwan throughout the Cold War. Only when the Soviet Union collapsed did we require that the latter two reform (The Philippines having done so themselves in 1986).

We could easily have installed strongmen in Afghanistan and Iraq, declare victory (a la Nixon) and leave. That we have not and will not do so is a tribute to our national character. No longer will the Cold War excuses of necessity do.

Further, we have gone out of our way to avoid unnecessary damage and casualties. This has been amply documented elsewhere. Raving leftists who say otherwise display their own ignorance.

Lastly, this has been perhaps the most politically correct war in history - from our perspective. We yhave gone out of our way toLastly, this has been perhaps the most politically correct war in history – from our perspective. There were a few intemperate words spoken in the early days of the War on Terror, but in general we have gone out of our way to avoid anything that may be perceived as an insult, to the point where the word “crusade” has just about been banned.

In conclusion, we have met the Right Intention test of Just War Theory.

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February 1, 2005

Just War Theory - Other Commentary

Marvin has taken note of my series on Just War Theory, and has provided several very useful links to other folks who have discussed the topic also. I encourage readers to visit his post and explore the links he has provided.

Meanwhile, the excellent writers over at Mirror of Justice are also blogging on how Just War Theory applies to the War in Iraq. Joe Carter (The Evangelical Outpost blog) would like to know what I have to say about their work. No problem, I'd be happy to oblige. Joe himself says that he is going to be providing commentary on the matter, so be sure and check his site regularly.

You can find links to my series on Just War here. I'm a little less than halfway through.

Little Red Blog

Marvin links to several excellent discussions of Just War Theory.

In a post on his blog Pseudo-Polymath, author Mark says that

As to arguments that in light of what we learned after the invasion about WMD, et al, are arguments invalidating the Justification for going to war, this is specious. One cannot be held accountable with regards to Justification for actions in light of knowledge gained after the fact. If one believes that intentional deception was used to frame the cause for War, then that contention should be backed up with fact.

Of course, that there is not one scintilla of evidence that anyone in the Bush Administration or intelligence community lied seems to bother the left-wing not at all.

Mark's other posts on the subject can be found here:

Read them all.

Mark does not follow the traditional outline for Just War Theory, but that's ok because he raises a number of interesting issues that I had not considered.

Mirror of Justice blog

Next up we'll turn to the post that Joe recommended on the Mirror of Justice blog. Writer Rob Visher has written a series of posts on Just War Theory that can be found here, here, here, here, here, and here.

I'm not going to attempt a full answer here to all of the issues he raises, because that is the point of my own series on the topic.

Rob asks several questions with regard to Just War Theory and the war in Iraq:

Can the conflict in Iraq be justified under just war principles without rendering those principles largely useless in terms of their future capacity to establish boundaries on human conflict?"
An excellent question, for it is all too easy to rationalize the justification this war in ways that could lead to a lessening of requirements to the point where Just War Theory is a joke. For example, suppose all requirements of jus ad bellum are met except Competent Authority, because the Congress will vote to authorize the war. We cannot then backtrack and say "oh well, if the president wants to do it then that's good enough, for we have all these other justifications." As I've made clear, I believe that for anything other than some short-term uses of military force, congressional authorization is required.
Can we all agree that, if the intelligence accurately revealed (what turned out to be) the absence of WMD, then the just war requirements would not have been satisfied? In other words, without a good-faith belief that WMD were present, the invasion of Iraq was immoral, right?
Well now, when Mirror of Justice bills itself as "A blog dedicated to the development of Catholic legal theory" they aren't kidding around, are they? These questions don't allow for any wiggle room. From my review of the matter so far, I'll answer that yes, without WMD the war would not have been just. Everything I know tells me that the Bush Administration did believe in good faith that WMD were present.
On what other basis could the conflict in Iraq possibly be considered a just war?
A few that come to mind are links to terrorism, and the constant threat that he would invade his neighbors (the idea that Iraq was contained in a "status quo" environment is laughable, the sanctions were falling apart). However, although Saddam was definitely in the terrorism business it was not a major threat to us, and alone would not have justified war. Possible invasion of his neighbors is another matter. He'd started two wars already (Iran and Kuwait), and would likely do so again. One may argue that it would be better to preempt this with an invasion, but this is certainly open to debate.

Another Link

Leo, writing for the Notre Dame Center for Ethics and Culture, has a very informative post on how Just War Theory applies to the invasion of Iraq. Check it out and see whether he thinks the war is justified.


Marc responds to my series. He makes some great points about revolutions and Competent Authority which I'll have to consider.

Posted by Tom at 1:44 PM | Comments (0) | TrackBack

January 25, 2005

Just War Theory - Comparative Justice

Comparative Justice is the next test that must be met as part of Just War Theory in order for a war to be considered legitimate. So far this is what we have covered in my series:

Introduction to Just War Theory
I. Recourse to War - jus ad bellum

  1. Just Cause
  2. Competent Authority
  3. Comparative Justice
  4. Right Intention
  5. Last Resort
  6. Probability of Success
  7. Proportionality

II. Conduct in War - jus in bello
  1. Discrimination
  2. Proportionality

Comparative Justice is the concept that while neither side in a conflict is perfect, one is more in the right, and is more just than the other. Is the justice of our cause greater than theirs? Also, are the rights and values at state serious enough to justify war? When considering whether it is just for the United States to go to war against a perceived threat, the question is not whether we are perfect; it is whether we are more in the right than they are.

On the one hand, we must reject the moral relevatists who tell us "one person's terrorist is another person's freedom fighter." On the other, we must be careful not to claim that we are certain that "God is on our side." Few states or causes have absolute justice on their side. However, in most cases one is more in the right than the other.

That this seems obvious is not borne out by everyday observations. During the Cold War there were those who denied that the United States had the right to defend it or it's allies against the Soviet Union due to the existence of this or that injustice within the United States. And to be sure, many of the things the critics pointed to were in need of serious attention, lack of civil rights for blacks primary among them. Today we see those on the left for whom any wrong on our side delegitimizes our entire War on Terror, and primarily the War in Iraq. This has been amply documented elsewhere, so there is no need for a recitiation of the facts here.

But those who insist on perfection, or absolute justice, are really seeking an impossible utopia. While the quest for utopia may seem a harmless fallacy to some, the reality is that in some cases it has led to the worst of totalitarianism the world has every seen. Further, Christianity, upon which Just War Theory is based, teaches that perfection on earth is an impossibility.

Thus those who insist on purity on our side are in error. This is, of course, not to say that no criticism of the United States or our allies is permissible. The question is whether that criticism is meant to help us win the war, or simply to bash and denounce the United States and our allies.

The second part of Comparative Justice is that it limits the means that can be employed to fight the war. The essential point is that the extent to which we may defend ourselves against an enemy is limed by the comparative justice between them and us. If there is no difference between them and us, we would be unjust in using force. (Note: war fighting is more properly the subject of jus in bello and will be discussed at length in part II)

During the Cold War a dangerous lack of moral clarity was in evidence in some intellectual circles. Terms like "the two superpowers" or "superpower rivalry" revealed a type of thinking in which the US and USSR were merely two chessplayers on the board of international politics. The reality was that the Soviet Communists truly wanted to rule the world, and put it under the thumb of a 1984-style regime. We had no desire to rule the world, but didn't want them to either. We were a democracy, and they were a totalitarian regime. That we were hardly perfect detracted not at all from the rightness of our cause.

Today we see moral equivalence in the War on Terror, and particularly with regard to the War in Iraq. Inanities such as "Stop the War" and "all killing is wrong" imply that we are in pursuit of an evil imperialistic agenda, and thus (at best) both sides are at fault. At worst, it is our entire fault because we did not sit back passively after 9/11 and Saddam's violations and agree to let everything be mediated by the United Nations.

We also see moral equivalence in Israel's war against Palestinian terror. The insistence among the elites in the media to decry the "cycle of violence" would be laughable were it not so tragic. Of course, there is no "cycle"; the terrorists attack regardless of what Israel does. The desire to be "evenhanded" and to urge "both sides to stop the violence" is unfortunately an attitude that American administrations have adopted at least since the Carter presidency.

Prelude to War

With regard to al Qaeda, the question is not whether we have done anything wrong in the Middle East, such as support dictators in Saudi Arabia, but whether their version of justice was better or worse than ours. And I think it clear that there has not been such a clear-cut case of who is right and who is wrong since the Second World War. Al Qaeda attacked us numerous times in the 1990's before they destroyed World Trade Center. There is much evidence to suggest that they would do so again. Further, if Osama bin Laden were able to impliment his vision of the Caliphate in the Middle East, we would see the rise of a regime comparable to Hitler's Germany or Stalin's Soviet Union.

With regard to the run-up to the invasion of Iraq, the question was not whether the United States had done every single thing right. The question is whether we were more in the right than Saddam Hussein's Iraq. Saddam violated every single agreement he made after the Gulf War. Perhaps we should have done this or that differently in the UN Security Council. But it takes an act of moral blindness to believe that "we are no better than they are." I am not going to recite all of my reasons why I believe the War in Iraq is justified, for I have done that in an earlier post.

There is no doubt that United States soldiers, and apparently civilian contractors, committed crimes at Abu Ghraib. Saddam murdered hundreds of thousands and buried them in mass graves. We investigate and prosecute our own (sorry, lefties, there's no evidence Rumsfeld was involved). Saddam promoted criminals like "Chemical" Ali, and the terrorists in Iraq today plant their bombs without any regard for civilian casualties. We go to great extent to minimize civilian casualties, and the terrorists go to great extent to maximize civilian casualties. Yet one of our young Marines shoots a terrorist who was probably playing dead and we are savaged in the press. The lack of moral clarity in some quarters is nothing short of astounding.

Other Rogue Regimes

What does this portend for other regimes such as Iran, North Korea, Syria, and China? As I have said in other posts, it is possible that we might go to war with China over Taiwan. No doubt we will see much moral equivelance from our elites were this to occur.

It is clear to me that we pass the test of Comparative Justice with regard to all of these regimes.

Just because a state passes the test of Comparative Justice does not mean that it has carte blanche to do what it wishes. Readers of this series should know by now that all of the tests must be met and passed.

Just War Theory is, as the name implies, only concerned with regimes with which we might go to war. It is not concerned with our relations with distasteful regimes such as those in Saudi Arabia, Pakistan, or Zimbabwe. I've made my thoughts clear on Saudi Arabia, for example, in other posts (here and here).

Next Time: Right Intention

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January 12, 2005

Just War Series - Competent Authority

This is Part 2 of my series on Just War Theory. The other parts covered thus far are:

1. Just Cause

The next test that must be met in order for a war to be Just is that of Competent Authority. Only states with the legal authority to declare war may do so. Generally private armies and individuals may not engage in warfare.

There are several questions that we must ask in order to determine if this test has been met:

  1. Do individual countries have the right to declare war?
  2. Is the government of the country making the decision legitimate?
  3. Does the individual making the decision have the authority to do so?
  4. If nuclear war or a "decapitating strike" by terrorists is a possibility, can competent authority survive to make the required decision?
  5. If the country involved possesses nuclear weapons, has it taken steps to prevent their unauthorized use?
Let's go through these one at a time.

It is my contention that yes; individual countries have the right to unilaterally declare war. While some today say that all war must be authorized by the United Nations, I believe this to be invalid for a whole host of reasons, not the least of which is that Section VII, Article 51, of the UN charter allows for nations to defend themselves through use of war. That said, the rest of Section VII attempts to restrict individual nations in a manner that I find unacceptable. In order to prevent future attempts to tie our hands, we should demand a revision of the charter. If that fails, we should withdraw.

Sometimes non-state actors may declare war, although those times will be rare. The only time this may be justified is if a people are under the heal of a tyranny, and all peaceful means of attempting redress have been exhausted. For example, the American Colonies for many years appealed to King George III for redress before a decision was taken to declare independence and go to war. But note that we did not do this as a resistance shadowy group. We formed a nation (ok nations, each state being largely independent, but let's not get into that here).

Governments that do not draw their authority from their people are illegitimate and do not have the right to declare war. At the current state of human development, the best system we have so far is the popular election process invented by western civilization. There are several such systems, and all are equally valid as long as certain criteria are met that we do not have time to explore here. This is not to say that democracies can go to war against tyrannies for no good reason. All the other criteria of the Just War must be met. Likewise, injustices can be done to the citizens of the worst regimes, the best example being the Nazi invasion of Soviet Russia. Thus only democracies can legitimately declare war.

As for the third question, by this we mean, "can the chief executive declare war without regard to other government entities?" The answer to this depends on the individual country involved. Even in a democracy the chief executive (president, prime minister) is usually restricted in some manner.

In the United States, the Congress not only is granted the sole right to declare war, but holds the purse strings to funding the military as well. The President, however, is granted Commander-in-Chief status by the Constitution. This has sparked a debate within our country over the past two centuries over who exactly can order our troops into battle. The current thinking is that if the conflict is probably going to be short, then the president can make the decision himself and need only inform the congress. However, if the conflict will probably be long and or involve many casualties, authorization by the congress is required. These are, of course, subjective criteria, and can be debated by reasonable people. But they are reasonable criteria. I would like to see an outright declaration of war rather than the current "authorization" type vote. But at least we have moved away from "Gulf of Tonkin" type justifications and towards a more formal authorization.

One of the threats in our modern age is that of the "decapitating strike" that kills, incapacitates, or renders incommunicado the legitimate authority (or authorities). This may occur through either a nuclear strike by another country, or a terrorist attack from an organization such as al Qaeda. Either way, governments have a responsibility to avoid a situation in which no competent authority remains. This is a complicated problem that has many aspects to it. Some of them are:

  • After a strike in which the first few people in the chain of authority are killed or otherwise incapacitated, the person(s) who have the authority may not have the information they need to make an informed decision. They may be under pressure to "do something", which can lead to rash action.
  • Command and Control issues come into play. Important communications lines may be out of order after an attack. Especially in the case of nuclear war, this can lead to problems in keeping the war under control and avoiding unnecessary escalation.
While Command and Control are always important, they assume special importance with regard to Nuclear Weapons. Quite simply, if a state is going to possess them, it has a responsibility to go to great lengths to safeguard them. It is my contention that the United States must continue to possess a limited number of these weapons. I do not accept the argument that in order to dissuade others from obtaining them we should not have them. Among other things, this is the fallacy of moral equivalence.

Application to Current Events

The test is whether the United States has met the requirement of Competent Authority with regard to the War on Terror. In my opinion we have met the requirements.

Of the five parts of Competent Authority first listed, only 1 through 3 applies to the invasions of Afghanistan and Iraq. Number 4 applies to the War on Terror in general, and the fifth is applicable at all times. Going through them in order:

  1. The United States has the authority to declare war without "getting permission" from any other entity such as the United Nations. I made clear my thoughts on this matter in a post here.
  2. Our government is legitimate. Period.
  3. President Bush did the right thing by going to congress, just as his father did in the run-up to the Gulf War. While I think that an outright declaration of war would have been best, an "authorization vote" is sufficient. In contrast to many conservatives, I think that the War Powers Resolution was a good idea.
  4. Whether we have acted to ensure a reasonable chance of survival of competent authorities is a technical question that I am not qualified to answer. My general impression is yes.
  5. This, too, is a technical question that I am not fully qualified to answer. However I do have more-than-average knowledge of the subject, so I would say yes to this as well. U.S. Air Force, Army, and Navy ship and carrier aircraft weapons are secured by Permissive Action Links (PAL) that physically prevent end-users from activating them. Missiles aboard Navy submarines do not have PALs. They rely instead on the cooperation of a significant fraction of the ships crew to launch the missiles (Note: the movie Crimson Tide, entertaining though it was, did not get the technical details right).

Next: Comparative Justice

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January 10, 2005

Just War Series - Just Cause

This is the first in a series on Just War Theory. The topic was first introduced in this post.

Just Cause
is the first requirement that must be met if a nation is to meet the test of whether a war is just. "The cause is the ultimate end for which the war is fought." (All quotes are from A Fighting Chance)

Martino makes three points that must be used in determining Just Cause.

  1. War must be limited to self-defense. This includes collective self-defense, such as coming to the aid of an ally.
  2. "Just Cause is limited to shielding against or preventing the violation of rights, and to reestablishing preexisting rights that have been violated. " In other words, if another country did something that has taken away some or one of our rights, we are justified in going to war to regain that right(s). In addition, we are justified in going to war to prevent recurrences of violations. War is only an option, however, if the danger is "real and certain." We are not just talking about the rights of nations. Individuals have rights, too (individual rights are primary, it may be argued). One may fight to secure and protect human rights.
  3. Retaliation for past wrongs is not allowed. Likewise, punishment for past violations of rights is not allowed if that violation has ceased and there is no reason to believe that it will recur in the future.
It is important to note that Martino framed his discussion in the context of the Cold War. As such,
  1. The use of nuclear weapons could destroy civilization as we knew it. One had to take into account the enormous amount of damage they could cause when contemplating a decision to go to war.
  2. The Soviet Union was a uniquely dangerous enemy. It had a history of mass murder that was unmatched by any regime in history, even Hitler's. Stalin alone murdered anywhere from 30 to 60 million, and communist governments worldwide over 100 million. One had to assume, therefore, that if the Soviets were able to take over our country or those of our allies mass murder would ensue. As Martino says, "we are talking about an enormous cost in lives even from unresisted Soviet conquest." Therefore, one must calculate how many people we would lose to new communist gulags versus the amount we would lose in a nuclear war. No one is reducing the decision to go to war to a mathematical calculation, rather it is simply a concept that we cannot ignore. Those who talk only of the destruction caused by nuclear weapons are missing half of the issue; the destruction caused by communist rule must be considered as well.
  3. Further, we are not just talking about deaths. Quality of life must be considered. Avoiding life as a slave is worth fighting for.
The Post Cold-War World

It is my contention that with only minimal adjustment, Martino's concepts apply to today's world. They can be used to justify both the War on Terror in general and the invasion of Iraq in particular.

War on Terror

The invasion of Afghanistan and our pursuit of al Qaeda meets the Just Cause test. We have every reason to believe that they are planning additional attacks after Sept 11 2001, and as such, we have a perfect right to go to war with them. The Taliban gave sanctuary to al Qaeda, and were complicit in their actions, having knowledge of their plans.


The harder test is the invasion of Iraq. Many have argued that the situation in Iraq did not require war for several reasons, but mainly because Saddam Hussein and his regime were effectively contained by the sanctions and no fly zones.

The invasion can be debated by reasonable people, with honest and well-meaning people coming down on both sides. It is my contention that the war meets the Just Cause test.

  1. Self-Defense - Saddam would, if he could have, attacked Americans and our allies. That he did not do so was only a result of the sanctions and no-fly zones imposed after the Gulf War. Saddam never "came around" or changed his ways. Further, the sanctions were falling apart. Russia and France had, several times, proposed that they be weakened. As Senator John McCain (in one of the rare times in which I agree with him) said at the Republican National Convention, "there was no stable status quo". The no-fly zones would likely be weakened over time. Once free of constraints, few would contend that Saddam would not have started up his WMD programs again. Given his propensity toward invading his neighbors, there is little reason to believe that he (or his sons when they assumed control after his death) would not repeat his aggressive behavior. Most importantly, we had every reason to believe that he possessed stocks of WMD, and would use them if he could. Lastly, the United States has allies in the region, not the least of which is Israel. Saddam fired Scud missiles at Israel during the Gulf War, and there was every reason to believe that he would do so again. Thus, we were acting to defend our allies.
  2. Reassertion of Rights -Immediately after the Gulf War, Saddam complied with the Security Council resolutions that, among other things, required him to destroy his WMD. But as time went on, and the threat of actual invasion by the US and UK (which he very much feared in March and April of 1001) receded, he grew more and more bold. One step at a time he threw roadblocks in front of the inspectors. Never enough to precipitate war, he moved slowly. But by the late '90s cooperation ceased completely and the UN was forced to withdraw its inspectors. Not until President Bush reasserted our rights was the issue brought to the forefront again. But again Saddam did not comply with the UN Security Council (resolution 1441). Lastly, the war was fought to secure the rights of individual Iraqis as well. That Saddam's Ba'athist regime violated basic human rights hardly needs elaboration.
  3. Retaliation - The war was not about retaliation. While some on the left rant about President Bush finishing "daddy's war", we need not take such talk seriously.
  4. I do not want to rehash the entire justification for the war in Iraq here. Interested readers can visit my post in which I list 16 reasons why I believe the war to be justified.
There are those would argue that whether or not Saddam "would have if he could have" is not a legitimate argument. They say that while we need not wait until after an attack has been made to respond, we should have waited at least until Saddam had truly shown that he was going to perpetrate an attack or atrocity.

Such an argument is not totally without merit. But it is one that I do not believe holds up in this situation, for reasons stated above.

Next up: Competent Authority

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January 6, 2005

Just War Theory - Introduction

Over the next few weeks I am going to intersperse normal posts with a series on Just War Theory.

Just War Theory is the idea that war can be justifiable as long as certain conditions are met. The theory covers both the decision to go to war, and conduct in war. Catholic theologians and philosophers develped it over the ages.

As a guide I will be using A Fighting Chance: The Moral Use of Nuclear Weapons, by Joseph Martino, published in 1988. The book is, sadly, out of print, although Amazon has a few copies left which can be had for a pittance.

The book is one of those books one happens across at the bookstore, or sees advertised by your book club, and is purchased on a whim. Most of us have one or two of these gems in our library, a book that you consider exceptionally well written, but that for some reason or other didn't do so well in sales. This book is one of them. I consider it so well reasoned that I've read it several times.

Years ago I had a brief email correspondence with the author. I happened upon an interview with him somewhere on the Internet, and his email address was listed at the bottom of the piece. Unfortunately the emails are long since lost, the victims of numerous changes of computer platforms.

Just War theory is divided into two parts; jus ad bellum, which concerns the decision to go to war, and jus ad bello, which concerns conduct in war.

For jus ad bellum, the conditions that must be met in order for the war to be just are:

  • Just Cause - The side going to war must have sufficiently strong reason for doing so.
  • Competent Authority - War can only be declared by those with the legal authority to do so.
  • Comparative Justice - The war may be justified if the party initiating it is more in the right than the other party. Note that absolute perfection is not required.
  • Right Intention - "The intention of those attempting to wage war justly must be to achieve only their legitimate objectives, not to go beyond them even in victory.
  • Last Resort - All reasonable alternatives must have been exhausted.
  • Probability of Success - This does not mean that victory must be certain, rather that there is a reasonable probability of success.
  • Proportionality - "The damage to be inflicted on the enemy must not be out of proportion to the good expected in taking up arms"

For jus ad bello, the criteria are
  • Discrimination - Reasonable care must be taken to protect the lives of the innocent. Strikes must be made only against legitimate military targets.
  • Proportionality - "In each individual military action, the damage to be done and the costs to be incurred must be justified by the military gain expected from the action."
I will be blogging on each of these in some detail in upcoming weeks.

Posted by Tom at 11:50 PM | Comments (0) | TrackBack