When is it okay to strike first?
The most commonly accepted paradigm for waging morally permissible, or just, war is in a war of self-defense. However, waiting until you are attacked is not the only manner in which to justify waging war. Most just war theorists agree that it is also morally permissible for a state to defend itself by striking first, but only under certain conditions. The two major concepts that govern the moral permissibility of striking first are those of pre-emptive and preventive war. Pre-emptive and preventive war are two very closely related concepts, the difference between them often only a matter of one degree relating to the imminence of the perceived threat. While the majority of just war theorists agree that pre-emptive war is morally permissible, they also agree that preventive war is morally impermissible. I argue that the definition of pre-emptive war and the role of imminence needs adjustment in the era of terrorism and non-state actors that we find ourselves in today by analyzing an adversaries’ capabilities and objectives.
The reason that most just war theorists consider pre-emptive war is morally permissible is that it counts as a form of self-defense. If one knows they are about to be attacked, in order to defend itself, that state can strike first, hence self-defense. It is not controversial legally, morally, or even strategically. To “pre-empt” means to strike first in the face of an attack that is either already underway or is very credibly imminent. According to Helen Frowe, “Pre-emptive war aims at averting a specific threat of an imminentharm.” We will return to the concept of imminence later. However in its most basic sense, pre-emptive war means that the threat of war has already been made by the enemy through hostile action (through troop movements, mobilization, etc.) or declaration, and the pre-emptive actions serve as a form self-defense to eliminate the imminent threat posed.
Preventive wars, on the other hand, are generally thought to be morally impermissible. This is due to the timing of, and therefore lack of imminence in, the enemies’ actions. Therefore preventive war would constitute striking another state without facing an imminent threat and it is very dangerous to make an assumption of belligerence the default response to international activities. Frowe defines preventive war as “aim at eliminating the capacity to threaten, in the absence of any actual threat.” Historically speaking, preventive wars were conducted to preserve “the balance of power” and were considered just if the intent was to preserve the status quo between states. If this is the definition of preventive war, we must reject this notion. In a more modern sense, preventive war refers to the idea of shooting on suspicion. In an age of weapons of mass destruction and terrorist/non-state actors, it could be too late to take action if one waits for their suspicions to be verified by actual hostile behavior.
As stated before, timing, or imminence, is what determines whether or not a war is preventive or pre-emptive. The concept of imminence is therefore very ambiguous, what in one case may be preventive, for another might be pre-emptive. Therefore, I believe, the important question becomes: How likely is the perceived enemy to actually carry out that threat? And furthermore: How imminent is the threat in regards to causing your state harm? The threat may be so imminent that responding reflexively as former US Secretary of State Daniel Webster described in 1841, may be necessary. On the other end of the spectrum, as we will see in the Isolation case later in this paper, sometimes imminence isn’t so black and white. We will view the concept of imminence can be viewed through both the Caroline case, and the Isolation case.
Caroline
If imminence is the primary determinant between the two concepts of pre-emptive and preventive wars, then how do we define imminence? One argument comes from U.S. Secretary of State and prominent lawyer Daniel Webster in the 1842 Caroline incident. In this incident, British forces attacked the Canadian ship Caroline which was being used by rebelling Canadians. The British argued that their attack was pre-emptive, while Webster denied that it pre-emptive status. After the British attack, Webster wrote that for self-defense to be a necessity, it is “…instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Essentially, Webster argued that the British were not facing imminent danger. Webster’s idea of imminence claims that imminent harm only comes when the requirement for force is urgent. If Webster’s claim is valid, then no war that begins before the absolute last second can be considered just.
On the contrary, perhaps pre-emptive force does not necessarily require imminence in the black and white definition from Webster. The United States’ revised National Security Strategy from 2002 asks that we modify the concept of imminence to today’s adversaries. By stating that in the past an imminent threat was “…most often a visible mobilization of armies, navies and air forces preparing to attack” and that in the 21stCentury we must instead analyze an adversaries’ capabilities and objectives. In this case, the idea of pre-emption is not that a threat is imminent, but that it will becomeimminent. This is a very plausible strategy in that it allows for the ability to attack emerging threats that pose a threat before that threat is fully capable of attack. By using capabilities and objectives as the necessary condition for waging pre-emptive warfare, this forces us to accept the notion that term “pre-emptive” requires the threat of harm be real. So, therefore, for a threat to be real, it must show the capacity and objective to visit harm on its enemy, and it can, therefore, be attacked under the guise of pre-emptive warfare.
To better analyze the concept of imminence and a real threat that shows the objective and capacity to harm, consider the isolation case as described by Frowe:
Isolation
Murderer, as usual, wants to kill Victim. He has chased Victim into the desert, where Victim is hiding in an abandoned, but well-fortified building. There are no means of communication with the outside world. Murderer is waiting outside, shouting to Victim that he does not plan on going anywhere. Victim knows that it will take Murderer several days to penetrate the building’s defenses, but that once he does, Victim’s chances of a clear shot at him will be much smaller.
This case is a great example that shows that imminence is perhaps a very fluid concept. I believe that inevitability plays a role, as does the knowledge of ill-intent or objective. In the Isolation case, I believe that it is morally permissible for Victim to eliminate Murderer as soon as he is able. Murderer displays a clear hostile objective, and he has the capability to murder Victim. Eliminating the threat before it becomes dangerous to Victim is legally and morally permissible in this case. However, Victim is not eliminating a threat in its early stages of development, nor is he trying to prevent the creation of a threat. So if he is merely responding to a real threat that is perhaps not imminent in the way Webster describes, Victim is conducting pre-emptive war. The threat was not imminent, but it was very real. This case illustrates the role that intent plays and forces us to rethink or even reject the idea that imminence is the sole requirement for pre-emptive war. The concept of imminence does not lend itself well to a precise definition, and there will always be a debate on whether something was imminent or not.
Furthermore, in the era of non-state actors and terrorism, judging what may be an imminent threat is nearly impossible. However, through good intelligence and an understanding of one’s enemy, their capacityand objectivecan be discerned and thus a pre-emptive war is morally permissible to end a growing threat before it becomes imminent in Webster’s definition. I believe that this rejection of imminence is precisely the reason the why 2002 National Security Strategy of the United States says that “…America will act against such emerging threats before they are fully formed.” This is a direct reference to non-state actors that do not conduct their business in plain sight. Imminence is therefore not a requirement, but rather a desired condition, for the justness of the pre-emptive war.
A new problem thus arises, and that is the definition of the term threat. A threat can take many forms, the most common of which being physical danger or a verbal warning, or a combination of the two.Nevertheless, these alone cannot be judged as threats. I argue that a history of violence coupled with current actions and verbal warnings is required for a threat to be real. Therefore, if an adversary shows signs of the capacity to harm, combined with the stated objective of doing harm, further augmented by a history of using lethal force, then the threat is real, and a war against the adversary is just under the doctrine of pre-emptive war.
As I have shown, preventive and pre-emptive wars are very closely related with very fluid definitions. The traditional definition of pre-emptive war is one of reaction, or reflexive action, to an overt threat that manifests itself in many forms. I believe that fighting non-state actors and terrorists in the 21st Century requires that the definition of pre-emptive war and the role of imminence be adjusted. As the concept of a threat changes, so too must the concept of pre-emption, and thus its moral permissibility. This new definition should account for an adversary’s capabilities and objectives. Only by adjusting this definition can we morally justify launching strikes against adversaries that don’t present the typical warning signs of large states in the wars of yesteryear. The world and the way war is waged is constantly evolving, will just war doctrine evolve with it?
