President Bush and Lt. Gen. William J Lennox stand at attention at the start of the U.S. Military Academy at West Point commencement ceremony, June 2002. In his speech, Bush laid the foundation for what is now popularly known as the Bush Doctrine. (AP Photo/Stephan

Will the Bush Doctrine Succeed in Redefining Just War?

By Erica Hagen

It is a question that philosophers have debated for at least two millennia: when is it ethical to wage war?

Four years ago, President Bush offered one answer by rejecting the idea, long held by many foreign policy experts, that the only just war is a war fought in self-defense.

“The war on terror will not be won on the defensive,” Bush said in a June 2002 speech at West Point Military Academy, where he laid the foundation for what is now popularly known as the Bush Doctrine. “We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action.”

Less than a year later, U.S. troops invaded Iraq. Citing now-discredited evidence of weapons of mass destruction in Iraq, the Bush administration used the potential existence of a threat to justify the war.

This policy shift, outlined more extensively in the Bush Administration’s 2002 U.S. National Security Strategy report, triggered a new debate among lawyers, ethicists, and ordinary citizens. In a new world order, where enemies don’t belong to a single state, where civilians are frequent targets, and where nuclear weaponry has raised the stakes for all, should the rules of the game be changed to sanction more aggressive measures?

No, said U.S. Army First Lieutenant Ehren Watada, who last June brought the political debate to wide public attention by his refusal to serve in Iraq. The Iraq war is “not only morally wrong but a horrible breach of American law,” he said.

“[Soldiers] must know that neither Congress nor this administration has the authority to violate the prohibition against pre-emptive war – an American law that still stands today,” Watada said in a speech before a convention of Veterans for Peace, a national organization of anti-war veterans based in St. Louis.

Watada now faces a possible court martial and up to six years in prison for his refusal to serve in what he defines as an unjust war. His case, set to resume in a Washington state court May 20, has drawn significant media attention, thanks to support from celebrities such as actor Sean Penn and moral authorities like South African cleric Desmond Tutu.

The Watada case reveals some of the problems with developing a coherent ethical approach to the conduct of war.

Just war theory is a branch of Western philosophy that dates back centuries, to St. Augustine and other early Christian thinkers. In recent years, secular ethicists and political theorists also have attempted to define a just war.

Students at West Point Military Academy still study just war theory. Michael Walzer’s classic 1977 Just and Unjust Wars, one of their texts, argues that there must a clear and imminent threat before a state is justified in going to war.

Ethicists today cite six criteria that must be met for a war to be considered just. The cause itself must be just; the declaration of war must be made by a legitimate authority; the use of force must be proportional to the offense committed; there must be a reasonable hope of success; there must be right intention (not simply killing for its own sake); and force may only be used as a last resort. Despite their wide acceptance, the criteria are broad and thus can be subject to varying interpretations.

In 1945, in the aftermath of World War II, representatives of 51 states tried to codify guidelines for state interaction by forming the United Nations, hoping to end warfare altogether. According to the U.N. charter, which is still the primary source of international law, states may only legitimately take military action when approved by the U.N. Security Council, or in self-defense when under attack.

Lt. Watada argued that since the U.S. government signed the U.N. charter in 1945, it is part of American law. Whether or not Watada’s arguments ultimately prevail in court, they have come to represent a new channel of resistance to the Bush Doctrine and may force the issue of whether international law can or should be enforced by the U.S. justice system.

While Watada battles in court, lawyers and political theorists continue to debate whether a military first strike can ever be justified.

“Preventive war is kind of an explosive device in the current legal system because it totally knocks off the definition of legitimate self-defense,” said Ariel Colonomos, a specialist in international ethics at Sciences Politique, a Paris university. “The definition of preventive war is difficult if in the end you don’t see the difference between preventive war and offensive war.”

Many foreign policy experts agree that some form of first strike can be ethical, if not legal, when a state is threatened. However, they say there is a very real ethical difference between a preemptive strike, taken when an enemy is preparing to attack and the strike offers the last possible opportunity to protect the state, and a preventive one, meant to extinguish a threat that is not imminent. In the view of these experts, the U.S. invasion of Iraq would be considered a preventive war and is thus much harder to justify.

Speaking at a Pew Foundation symposium on Iraq in late 2002, author Michael Walzer said, “International lawyers and just war theorists have never looked with favor on this argument” for waging a preventive war against dangers that are “not only distant but speculative.” Distant dangers, said Walzer, “might be avoided by diplomacy” or others actions short of military attack.

There is no formal means of enforcement for the U.N. charter’s rules on war, so states that launch military actions are judged only in the court of international public opinion. In the end, the real power of international law may be akin to a battle for hearts and minds.

And hearts and minds are much more difficult to win, as the Bush administration has found in Iraq. U.S. public support for the Iraq war has declined to an all-time low, with a March 2007 Gallup poll reporting that 59 per cent of Americans thought the U.S. “made a mistake in sending troops to Iraq.”

The ultimate impact of this decline in public support could play out in the coming months if the Bush Administration continues to try to build a case against Iran.

“Even if we did have smoking gun evidence with respect to Iran’s involvement in Iraq, very few people are going to believe that we didn’t fabricate that evidence under the circumstances,” said Jose Alvarez, director of the center on Global Legal Problems at Columbia University. “The costs of ignoring the law usually come home to roost over decades.”

Alvarez also says the Bush Doctrine could make the U.N. Security Council more reluctant to sanction any form of force, even if the cause is just.

“I think that one of the consequences of Iraq is to make it more difficult for humanitarian intervention to occur even in a sympathetic case like Rwanda,” he says. “And it’s going to be hard to press that button for unilateral action even in more sympathetic cases.”


Thank You Lt.
Legality of War
Gallup on Iraq