three tests that principles for justifying the invasion of iraq must pass

North American Philosophical Publications

Three Tests That Principles for Justifying the Invasion of Iraq Must PassAuthor(s): D. W. HaslettSource: Public Affairs Quarterly, Vol. 21, No. 4 (Oct., 2007), pp. 345-362Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40441494 .

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Public Affairs Quarterly Volume 21, Number 4, October 2007

THREE TESTS THAT PRINCIPLES FOR JUSTIFYING THE INVASION OF IRAQ

MUST PASS

D. W. Haslett

2004, a presidential campaign took place in the United States during which moral questions were discussed extensively: the morality of gay marriage, the

morality of abortion, the morality of stem-cell research. Yet the most pressing moral question facing the American people was virtually ignored by both candi- dates: the morality of the 2003 invasion of Iraq by the United States and its allies. This discussion is about the morality of this invasion. But it is also about three "tests" that any justified principle of morality must be able to pass. Passing all three tests is not sufficient for justification, but is necessary. Commonly proposed principles for determining the morality of military invasions are to be subjected here to these tests. Subjecting them to the tests will help determine whether these principles are justified. And considering whether these principles are justified will, in turn, help shed light upon the tests. Some of the principles do not pass. Others do, but, as will be explained, only if morality requires that a certain "standard of proof be met for determining whether the principle is being applied correctly. Each principle that does pass all three tests is then examined to see whether, in terms of it, the invasion of Iraq can be morally justified.1

I. The Golden Rule of Principles Test

Test number one is a Golden Rule for evaluating not acts, but moral principles. Let us call it the "golden rule of principles" test. This test helps us determine whether a principle is justified by confronting us with the universilizability of moral principles, by forcing us consider principles from not just our own perspective, but also the perspective of others. To pass this test, a principle must be such that, generally speaking, those who approve of their using it to judge how to treat others would also approve of others using it to judge how to treat them.

To understand how to apply this test, we must be clear about what, for purposes of this test, counts as "using" a principle. When we say of someone, S, that S is "using" a principle of morality, this can mean either that S is succeeding in fol-

345



346 PUBLIC AFFAIRS QUARTERLY

lowing it, or that S is trying to follow it. Were human beings infallible, it might make sense to evaluate a moral principle solely in terms of whether we approve of people succeeding in following it. But with human beings as they are, beings for whom trying to follow a principle is far from any guarantee of success in doing so, it makes more sense to evaluate a moral principle in terms of whether we approve of people trying to follow it. So, for purposes of the golden rule of principles test, the relevant sense of "using" a principle is that of trying to follow it.

Formulated specifically for principles of international morality that govern the behavior of nations, the golden rule of principles test becomes: A principle of international morality must be such that, generally speaking, those who approve of their nation using it to judge how to treat other nations would also approve of other nations using it to judge how to treat their own nation. Consider, for example, this principle: Nations with enough power to force the world to do what they want may invade other nations to make the world a better place. Call it the "better-place" principle. For the sake of argument, assume that the United States, and only the United States, is powerful enough to force the world to do what it wants. Many Americans might well then approve of the United States, in the name of this principle, invading other nations to make the world a better place. But if, say, China were someday to realize its full potential and become the only nation powerful enough to force the world to do what it wanted, would these same Americans, or at least most of them, approve of China, in the name of this principle, invading other nations, including the United States, to make the world a better place? Surely not. Thus the better-place principle fails the golden rule of principles test.

II. The Conceptual-Clarity Test

If a principle of morality fails the golden rule of principles test, there will always be a reason, or reasons, independent of this test for why it failed. One such reason may be that the principle fails a second, and widely recognized test that any principle of morality must be able to pass. Call it the "conceptual-clarity" test. To pass this test, the principle must be formulated in terms that are reasonably clear. No principle, of course, could ever be formulated with such clarity that there would never be any uncertainty about what fell within the meaning of its terms. But, to pass this test, a principle must be formulated with enough clarity so that there would be no uncertainty in the vast majority of cases.

Consider again the better-place principle, which permits nations to invade other nations to make the world a better place. Without conceptual clarification, there would be no telling what different nations might think counted as a "better place." So, without conceptual clarification, this principle would fail the conceptual-clarity test. This then is one underlying reason why the better-place principle fails the golden rule of principles test. With this much uncertainly about what, for purposes



TESTS FOR IRAQ WAR-JUSTIFYING PRINCIPLES 347

of this principle, counted as a "better place," most people would hardly approve of foreign nations using it for justifying an invasion of their own nation.

III. The Empirical-Clarity Test

But suppose we did clarify, adequately, what counted as a "better place." For yet another underlying reason, the better-place principle would still fail the golden rule of principles test, for it fails yet another test that, to be justified, any justified principle of morality must be able to pass, a test not widely recognized like the conceptual-clarity test, but no less important. Call this the "empirical-clarity" test. To pass this test, a principle of morality must be such that the facts needed for applying the principle correctly are not so difficult to uncover that people would, all too often, misapply the principle. In other words, the facts needed for applying the principle correctly must not be so difficult to uncover that the probability of misapplying it would be too high.

But then, for purposes of this test, exactly how high a probability of misapplication counts as too high? The answer to this varies from principle to principle. For principles which are such that the consequences of misapplications normally are not too serious, a greater probability of misapplication can be tolerated. For principles that determine the morality of military invasions, however, the consequences of misapplications normally are serious indeed: billions in property damage; vast pain and suffering; enough deaths to rival the most horrible of natural disasters. So it may well be that, for such principles, the misapplication probability that can be tolerated is less than for certain other moral principles. For any proposed moral principle, however, there is, in theory, always some probability which is such that if the likelihood of misapplying the principle equals or exceeds that probability, then the principle fails the empirical-clarity test. In practice, of course, these matters can never be measured precisely. Yet some principles are so difficult to apply correctly, and the consequences of misapplying them are likely to be so serious, that their failure to pass this test is obvious enough.

Consider the act-utilitarian principle: Always do that, and only that, which results in the most overall well-being - a principle to be used by individuals for determining the morality of each of their acts. Without clarification of what counts here as "well-being," this principle fails the conceptual-clarity test. But even with

adequate clarification, this principle would still fail the empirical-clarity test. So much information normally would be needed to apply this principle correctly, and rationalizations would be so easy to fall into, that, no matter how hard individuals tried to determine which acts would indeed maximize overall well-being, misapplications of this principle, with dire consequences, would be bound to occur too often. And these dire consequences would not be limited to just the bad consequences of each misapplication taken by itself. More dire yet would be the overall decrease in what has been called "social capital" - a decrease in security, trust, and cooperation that, as a consequence of so many misapplications,




would permeate the entire society.2 All of this makes it obvious enough that the better strategy is for morality to require that individuals attempt instead to follow principles of morality that are less likely to be misapplied, which means that the act-utilitarian principle fails the empirical-clarity test. The same is true of the better-place principle. With any reasonable interpretation of what it means for the world to be a "better place," determining whether a proposed invasion really would make the world better would require empirical calculations that, typically, would be extremely difficult. It would require calculating the potential costs and benefits from the changes that the invasion would be attempting to bring about, along with, for each potential cost and benefit, the likelihood of its actually occurring, and weighing all this against the destruction, death, and suffering likely to result from the invasion. Moreover, these calculations would need to be done without judgment-distorting partiality. The probability of such difficult calculations misfiring with potentially disastrous results would be so high that, like the act-utilitarian principle, the better-place principle fails the empirical-clarity test. For determining the morality of military invasions, morality should require that nations attempt instead to follow principles that are far more sharply focused, thus far less likely to be misapplied.

IV. Standards of Proof

An important question about moral deliberation that is generally ignored by moral philosophers is this: how certain should morality require that people be about whether their proposed actions are morally justified before they act? In particular, how certain about the moral justification of a military invasion should the leaders of a nation be before going ahead with the invasion? Notice that an answer to this question will be relevant to whether alleged principles for determining the morality of military invasions pass the empirical-clarity test or not. How much empirical imclarity we can tolerate in these principles depends in part upon how certain those applying these principles are required to be about whether they are applying them correctly. The higher the standard of certainty that is required by morality, the more this helps compensate for how difficult it may be to uncover the facts necessary for applying the principles correctly. In other words, the higher the standard of certainty that is required, the greater will be the empirical unclarity that can be tolerated.

Concluding that a nation is guilty of doing something that morally justifies invading it is not dissimilar from concluding that a person is guilty of having committed a crime that legally justifies punishment. In a civil trial - a trial initiated by a private party for personal reasons - a verdict one way or the other normally requires only a "preponderance of the evidence." Something, S, is supported by a preponderance of the evidence if and only if the evidence makes S more likely than not. So for S to be supported by a preponderance of the evidence, the probability of S must merely be greater than 50 percent, even if just 51 percent. In a




criminal trial - a trial in which the state, in the name of the people, is prosecuting a party for having allegedly committed a crime - a verdict of guilty requires proof of guilt "beyond a reasonable doubt." A verdict of innocent requires only that there not be proof of guilt beyond a reasonable doubt. Whether something, S, is proven beyond a reasonable doubt is, in principle, an objective matter that does not depend upon anyone's having any particular mental state, such as be- lief, or doubt. It depends only upon whether there is in fact sufficient evidence. For something, S, to be proven beyond a reasonable doubt, S must, in light of the evidence, be, if not certain, at least close to certain. So, for S to be proven beyond a reasonable doubt, the probability of S must be far higher than the mere 51 percent sufficient for a preponderance of the evidence; "close to certain" means probability close to 100 percent. Exactly how close cannot, however, be specified except arbitrarily, and need not be specified since, with these matters, exact probabilities are unachievable anyway.3

Notice something else about criminal trials. A jury's verdict of guilty is legally justified if and only if the defendant really is guilty. But whether or not the defendant really is guilty is not the standard used for determining whether the jury deserves blame or not for the decision they reach. The standard for determining this includes whether the jury adhered to the standard of proof required by law - namely, that of finding the defendant guilty if and only if the evidence proves guilt beyond a reasonable doubt. If the jury finds the defendant guilty, yet there was no evidence in support of guilt, then, even if the defendant is in fact guilty, the jury is blameworthy for reaching that decision since, in doing so, they obviously did not adhere to the standard of proof required by law. On the other hand, if the defendant is not in fact guilty, but the jury does find him guilty on the basis of evidence that proves guilt beyond a reasonable doubt, then the jury is not blameworthy for reaching that decision since they did adhere to the standard of proof required by law. So the standard for determining whether a jury 's decision is legally justified, and the standard for determining whether a jury is blameworthy for reaching the decision they reach, are different standards. Much the same is true with respect to decisions to invade a nation; the standard for determining whether the invasion is morally justified, and the standard for determining whether those who make the decision to invade are morally blameworthy for their decision, are not the same. The standard for determining whether an invasion is morally justified is whether it is compatible with justified principles for determining the morality of military invasions. But, to avoid being morally blameworthy for their decision to invade, those who make the decision not only must try to make their decision compatible with justified principles, but must also adhere to the standard of proof required by morality for concluding that their decision is compatible with these principles.

What shall be argued here is this. For concluding that a decision to invade is compatible with justified principles for determining the morality of military inva-




sions, for concluding, in effect, that it is therefore morally justified for perhaps thousands of people to be killed, morality should require no less a standard of proof than is required for concluding, in a criminal trial, that the defendant is

guilty. What this means is that, before invading another nation, a nation should be able to show that the conditions for a morally justified invasion set out by these principles have been met beyond a reasonable doubt. The nation should be able to show this to the United Nations, and in fact try to do so even though the UN's conclusion may not be morally binding. It should be able to show this to the world, and in fact try to do so to the extent that time permits. And always, before exercising their awesome power over life and death, those making a decision to invade should be able to show this to their own satisfaction.

Consider criminal trials. The consequences for defendants of being found guilty can be serious indeed; they may include a loss of freedom, or even life, consequences that, typically, are more serious than those of civil trials. Since the consequences can be so serious, an obvious reason for requiring proof beyond a reasonable doubt before concluding that the defendant guilty is to help prevent conclusions that are mistaken. But this reason for requiring proof beyond a reasonable doubt is even more applicable to those deciding whether to launch an invasion. The consequences of their mistakenly concluding that the invasion is morally justified are even more serious,/<zr more serious, than the consequences of a jury's mistakenly concluding that the defendant is guilty.

The seriousness of mistakenly concluding that a defendant is guilty may not be the only reason for requiring proof beyond a reasonable doubt in criminal trials. Contrary to civil trials, criminal trials are initiated by the state in the name of the people - all of the people, including the people on the jury. The state's interest in criminal trials is that of helping bring about a society free of crime, an interest shared by the people on the jury. They, like people everywhere, have an interest in a society safe for themselves and their loved ones. Thus, in criminal trials, the people on the jury typically have a reason to identify their own interests with that of the state, a reason, in other words, to be somewhat partial to the state. And any partiality has the potential for distorting judgment. The more complex, and thus difficult to judge, a matter is, the greater is the potential for this distortion. So another reason for requiring a stricter standard of proof in criminal trials than in civil trials may be to help compensate for the greater potential for judgment- distorting partiality in criminal trials. But no matter how necessary a strict standard of proof may be to help compensate for partiality in criminal trials, for concluding that an invasion is morally justified, a strict standard of proof to help compensate for partiality is even more necessary. An international court that could provide impartial and binding judgments about the justification of proposed invasions would be highly desirable. Since, however, there is as yet no such court,4 these judgments must, in the end, be made by the leaders of the very nations that will be carrying out the invasions. Considering how partial these leaders naturally are



TESTS FOR IRAQ WAR-JUSTIFYING PRINCIPLES 35 1

to the interests of their own nation, and how complex, and thus difficult to judge, matters concerning the moral justification of proposed invasions are likely to be, the potential for conclusions about these matters to be distorted by partiality is enormous. It is as if, in trying people for crimes, prosecuting attorneys also served as judges, juries, and executioners. Proof beyond a reasonable doubt helps a lot to compensate for this enormous potential that conclusions about the morality of invasions have for being distorted by partiality. With any more lenient standard, the potential for mistaken conclusions would be too great for principles that determine the morality of military invasions to pass the empirical-clarity test. So, before launching an invasion, the standard of proof required for concluding that the invasion is morally justified should be no less than proof beyond a reasonable doubt. A preponderance of the evidence is sufficient for concluding that the invasion is prudentially justified, but proof beyond a reasonable doubt should be required for concluding that it is morally justified. And, of course, morality has priority over prudence.

V. Conditions Any Invasion Must Meet

But then what exactly are the principles that determine the morality of military invasions? Before we investigate this, notice first some important conditions that, as is widely agreed, it is always obligatory for an invading nation to meet. First, prior to invading, a nation must always have already exhausted all reasonable non-military alternatives, such as negotiation - the "last resort" condition. Second, the invading nation must use no more force, that is, inflict no more harm, than necessary for accomplishing its military goals - the "minimal force" condition. Third, the harm that can reasonably be foreseen to result from the invasion must not be way out of proportion to the good that can reasonably be foreseen - the

"proportionality" condition. These three traditional conditions give rise to complex issues, but these issues need not be examined here.5

A fourth condition is also important, even though not traditional. Prior to launching an invasion for any purpose, a nation must always, if time constraints permit, seek the approval of the United Nations or any other legitimate international organization that may be relevant. The more nations there are working together in trying to decide whether a proposed invasion would be justified, the more checks and balances there will be upon the final decision - crucial checks and balances in the form of different perspectives, additional information, and

greater impartiality. And therefore the fewer miscalculations there will be. Sadly, however, the United Nations is, at present, a seriously flawed organization. Its

decision-making process is highly undemocratic, an outmoded remnant from World War II. Vetoes from one or more of the permanent members of the UN Security Council, typically exercised for selfish, political reasons, prevent many critical resolutions from getting approved. Any UN judgments about a nation's military activities should indeed be taken very seriously by that nation. But until




this outmoded decision-making process has been appropriately reformed, morality must recognize a right on the part of every nation to make, in the end, its own decisions about at least those military activities necessary for its national security.

Of course this does not mean that, with respect to military activities, every nation may do anything it wants. Every nation remains, at all times, subject to

principles of morality. And, with respect to military activities, the most fundamental principle is that no nation may invade any other nation. But this fundamental principle is subject to certain exceptions which may themselves be put in the form of principles, principles that delineate "just causes" for invasions. In light of the three tests set out at the beginning of this inquiry, tests that any justified principle of morality must be able to pass, let us now investigate what principles for delineating just causes pass these tests. And let us see whether any that do

pass can justify the invasion of Iraq.

VI. The Defense Principle

Most would agree that defense against an unjust attack is a just cause. So most would agree that one justified principle for determining the morality of

military invasions is a principle that permits nation A to invade nation B to defend against an unjust attack by B upon A or some other nation. Call it the "defense" principle. Surely some version of the defense principle would pass the golden rule of principles test; most who approve of such a principle would not object to its being used universally. The defense principle, spelled out fully, would probably pass the empirical-clarity test as well; at least it would if, for concluding that the conditions for applying this principle correctly had been met, morality required, as already explained, proof beyond a reasonable doubt. What about the conceptual-clarity test? One concept that needs further clarification is what exactly constitutes the "beginning" of an attack. An attack is a cooperative endeavor requiring the coordinated behavior of many people. A nation's "official" decision to attack, whether made openly or secretly, may thus be characterized as whatever overt act successfully puts this huge cooperative endeavor into motion for that nation. What is suggested here is that it makes most sense to mark the beginning of an attack from the point at which this official decision occurs. Other concepts no doubt need further clarification as well. But no attempt shall be made throughout this discussion to clarify concepts, or formulate principles, any more fully than may be necessary for an informed opinion about the morality of the Iraq invasion. And no one claims that this invasion can be justified as defense against an unjust attack from Iraq.

Some, however, have claimed that this invasion can be justified as defense against unjust attacks from al-Queda, a defense which, they claimed, was being hindered by support for al-Queda from Iraq. The kinds of support from nation C for B that might justify nation A's invading C for purposes of defense against B include C's providing sanctuary for B, as the Taliban government in Afghanistan




did for al-Queda, C's providing arms or finances for B, and C's providing troops for B. But to justify A's invading C for supporting B, this support should, it is suggested here, be occurring at present. Past support that has been discontinued, or possible support in the future, should not be enough. For morality to permit invasions merely on grounds of support that has already been discontinued, or possible future support, would proliferate too many potential military confrontations. Moreover, to justify A's invading C for supporting B, A's ability to fight back against B should be hindered by C's support not just somewhat, but substantially. For morality to permit any standard weaker than "substantial" hindrance would make it too easy for A to justify invading nations, which, again, would only proliferate potential military confrontations needlessly. So, as the defense principle is being interpreted here, for it to be morally justified for A, in self-defense, to invade C for supporting B, C's support should be occurring at the very time of the invasion, and be hindering A's defense against B substantially.

Can then the invasion of Iraq be morally justified in terms of the defense principle, as defense against the terrorist attacks of al-Queda? It cannot; not at least as this principle is being interpreted here. As it is being interpreted here, for the invasion to have been justified in terms of this principle, it must have been the case that, at the time of the invasion, Iraq was supporting al-Queda, and this support was hindering defense against al-Queda not just somewhat, but substantially. It is now, however, well established that no significant support for al-Queda from Iraq existed.6

If it turns out that the invasion of Iraq cannot be justified in terms of this or any other principle of morality, does this then mean that the national leaders responsible for the decision to invade are therefore blameworthy for having made this decision? Not necessarily. They are, it is argued here, blameworthy only if they decided to invade without having had enough evidence to show, beyond a reasonable doubt, that conditions which morally justified an invasion existed. And, as unlikely as it may be, it is at least conceivable that, even though no such conditions did exist, these leaders could nevertheless have had enough evidence to show the existence of these conditions beyond a reasonable doubt. Since the public is not privy to all the evidence upon which they based their decision to invade, no conclusions about blameworthiness can be reached here.

VII. The Treaty-Enforcement Principle

A more common way of defending the invasion of Iraq is to argue that it was morally justified in terms of a principle that permits invasions for purposes of

enforcing international settlements; in this case, the ceasefire accord originating from the UN that ended the Persian Gulf War of 1991, and related UN resolutions. Of course not just any international treaty warrants enforcement by military invasion. If the United States and Mexico negotiated a free-trade treaty between themselves, Mexico violated this treaty by putting protective tariffs on certain




imports, the United States would hardly be justified in invading Mexico to enforce this treaty. But one type of treaty that does appear to warrant enforcement by military invasion is a treaty, ceasefire agreement, resolution, or settlement of any other sort that ends prior military hostilities; if, that is, the settlement imposed upon the defeated nation is a just one, and if all nonmilitary means of enforcing it have been exhausted. It is reasonable to assume, however, that a nation may, by an invasion, enforce a settlement that ends prior hostilities only if it is the nation, or one of the nations, that is a party to the settlement, or is doing so with official approval from a party to the settlement. Consider a hostility-ending settlement between Israel and Egypt. Surely it will not do for morality to permit any nation that is neither a party to this settlement nor authorized by a party, any nation whatever such as Iran, to take it upon themselves to invade Israel supposedly to enforce this settlement.

What if, however, the prior hostilities were fought by a coalition of nations in the name of the United Nations, and thus the subsequent hostility-ending settlement originated from the United Nations? In that case, should the United Nations, or a nation with official authorization from the United Nations, be the only ones morally permitted to enforce this settlement militarily, or should any of the nations that participated in the original hostilities be morally permitted to enforce it even without UN authorization? The case for allowing any of the original participants to enforce it even without UN authorization is that, as we have seen, the UN's decision-making process is highly undemocratic, often resulting in decisions motivated merely by the selfish, political agendas of the permanent members of the Security Council. Therefore, it might then be concluded, each of these nations should have the right to decide for itself what military action, in the name of its national security, it is justified in taking. On the other hand, the case for allowing only the UN, or a nation with UN authorization, to enforce the settlement is to keep military confrontations to a minimum. What is suggested here is a compromise: every nation that participated in the original hostilities is to be morally permitted to enforce the settlement, but if a nation does not have UN authorization, then, for it to be permitted to initiate armed enforcement, the nation must be able to show that the violation in question poses an immediate, and substantial, threat to its national security; its own national security, not merely that of other nations. Other nations are to become involved militarily only if authorized by that nation after it has itself legitimately initiated the enforcement. Call a principle that, qualified in these ways, permits invasions for enforcing hostility-ending settlements, the "treaty-enforcement" principle.

Does the treaty-enforcement principle pass the three tests that a justified principle of morality must be able to pass? It probably passes the golden rule of principles test; there does not seem to be any reason why those who approve of such a principle would nevertheless object to its being used universally. There are, of course, matters in need of clarification if this principle is to pass the




conceptual-clarity test. Certainly what counts as settlement terms that are "just" is very much in need of clarification. And, although what counts as a threat to national security that is "immediate" and "substantial" is clear enough for most practical purposes, still further clarification would be useful. But we need not attempt these clarifications here. More problematic for our purposes is whether this principle passes the empirical-clarity test. The facts for determining whether a hostility-ending settlement was just, or had been violated in a way that poses an immediate and substantial threat might well be difficult to acquire. An international court capable of providing impartial and binding decisions on these matters would be desirable. But the absence of such a court should not preclude the treaty-enforcement principle from passing the empirical-clarity test provided, once again, that the danger of misapplying this principle is minimized by requiring proof beyond a reasonable doubt, not just a preponderance of the evidence or some other lesser standard.

Can then the invasion of Iraq be justified in terms of the treaty-enforcement principle as it is being interpreted here? For the invasion to be justified in terms of this principle, at least three conditions would have to have been met. First, Iraq would have to have been violating the ceasefire accord originating from the UN that ended the Persian Gulf War of 1991, or related UN resolutions. Second, all reasonable nonmilitary means for achieving conformity with this settlement would have to have been exhausted. Third, since there was no authorization from the UN,7 for the United States and its allies to have been morally justified in initiating the enforcement, the violation would have to have posed, to their own national security, a threat that was both substantial and immediate. It is not clear whether both of the first two conditions were met. But it is reasonably clear that the third condition was not met. Since, as is now known, Iraq was not, at the time, amassing weapons of mass destruction, no violation of the settlement posed a threat to the invading nations that was both substantial and immediate.

VIII. The Humanitarian-Intervention Principle

These days, however, probably the most popular way of attempting to justify the invasion is in terms of humanitarian intervention, which is, in fact, generally recognized as a just cause.8 Let us call a principle permitting invasions for these reasons the "humanitarian-intervention" principle. If such a principle is to pass the conceptual-clarity test, however, we much clarify what kind of intervention exactly should count as "humanitarian" intervention. Should we characterize it as intervention for the purpose of stopping violations of human rights? This will not do. A principle that permitted invasions for stopping any violations at all of human rights could not pass the golden rule of principles test. Through discrimination, unfair trials, violations of privacy, detainment without access to counsel, and the like, every nation is guilty of violating human rights at times. Not many people would approve of foreign nations invading their nation to remedy just any such




violations. Most such violations are far better handled internally through a nation's system of courts or its political processes, even if, as with eliminating discrimination that violates human rights in the United States, it takes many years.

Should then we characterize "humanitarian" intervention as intervention to force democracy upon a nation? Democracy is much more than merely a matter of popular elections. In addition to popular elections, democracy requires that there be certain rights against the government, often referred to as freedoms, such as freedom of speech, freedom of association, and freedom from arbitrary arrests. Without these freedoms, popular elections become meaningless. Democracy also requires certain institutional checks and balances, such as an independent legislature and impartial judiciary. Some nations may have popular elections, but lack the necessary freedoms or institutional checks and balances, while other nations may already have some of the necessary freedoms or institutional checks and balances, but lack popular elections. In short: democracy is not a matter of all or nothing; in its many aspects democracy is a matter of degree, with probably every nation having at least some aspects in place to some degree. So, to be perfectly accurate, we should probably speak of armed intervention in the name of democracy as intervention not to force democracy upon a nation, but to force more democracy upon a nation. Is then this how we should characterize "humanitarian" intervention?

This is not how it should be characterized. The extent to which a nation already does have certain aspects of democracy in place, and the urgency with which it needs to have certain other aspects in place, can be controversial, difficult matters to determine. A stable, largely non-democratic government able to maintain law and order might, after all, be temporarily even more in the best interests of the people of some nation than a fragile, more democratic government unable to maintain law and order. And it is important to distinguish between (1) attempting to force more democracy upon a nation that, like Japan, Germany, and Italy after WWII, has already been defeated in a war fought for other reasons, and (2) attempting to force more democracy upon a nation by starting a war for that purpose. Since, with (2), the war has not yet been fought, any potential benefits from more democracy must be weighed against all the destruction, death, and suffering likely to result from the war. Weighing this destruction, death, and suffering against these potential benefits would be difficult enough even assuming that the benefits will in fact be realized. But when the many ways that things could go terribly wrong, thereby negating the benefits, are factored into the equation - ways such as the invasion failing, or the propped-up democracy falling apart, or the leaders elected being just as regressive as the ones deposed, the many ways in which all the destruction, death, and suffering might end up having been in vain - when all of this is factored into the equation, reliable empirical calculations may well become not just very difficult, but next to impossible. Miscalculations would be quite likely even for an international court capable of impartial and binding




judgments. Since, however, there is no such court, these calculations have to be made by the very nations to be carrying out the invasions, thereby, through judgment-distorting partiality, making miscalculations even more likely. None of this, of course, means that invading a nation to force more democracy upon it would never make it, and the world, a better place. It just might, but that is beside the point.9 The point is that the likelihood of miscalculations would be too great. Humanitarian intervention characterized this broadly would turn the humanitarian- intervention principle into little more than a variation of the better-place principle. Like the better-place principle therefore, the humanitarian-intervention principle, so interpreted, would fail the empirical-clarity test, and, without still further clarification, the conceptual-clarity test.

It probably would fail the golden rule of principles test as well. Democracy in no nation is perfect. Consider the United States. In spite of attempts at campaign- finance and lobbying reforms, the rich and powerful in America still further their own special interests by influencing governmental decisions inappropriately. For the sake of their own special interest in getting re-elected, legislators deliberately defy the general welfare by packing all sorts of "pork" onto otherwise legitimate legislation. And electoral districts throughout the United States have been shame- lessly contorted into shapes designed only to make sure that one or another of the two main parties will always win within the district, a highly anti-democratic practice known as gerrymandering. In short: even the United States would be a better place with more democracy. But would Americans approve of some nation using this as a reason for invading the United States? Hardly. Just as with most human-rights violations, it is normally better to allow nations to work these matters out themselves, with the contribution from foreign nations being that of encouragement, not coercion.

On the other hand, most people probably would approve of their nation being invaded by a foreign nation for stopping anti-democratic violations of human rights within their nation that were severe and extensive enough. Thus a humanitarian- intervention principle that permitted armed foreign intervention only for stopping these extreme violations probably would indeed pass the golden rule of principles test. But, if thus revised, the humanitarian-intervention principle would still not pass the conceptual-clarity test until the following line-drawing problem had been resolved. Just how severe and extensive should these violations have to be for them to be severe and extensive enough to justify armed foreign intervention? No violations of human rights are more severe, extensive, and urgently in need of being stopped than genocide, or unjustified mass killing for other reasons.

Perhaps then, for purposes of the humanitarian-intervention principle, we should characterize "humanitarian" intervention as intervention only for stopping genocide or other unjustified mass killing. This is, in fact, the conclusion reached by the Human Rights Watch, the most respected human rights organization in the world; and this is the conclusion reached here.10




The humanitarian-intervention principle, interpreted this way, probably passes the golden rule of principles test and, sufficiently for our purposes at least, the conceptual-clarity test. Among the things that remain to be clarified is what, for

purposes of this principle, constitutes "other unjustified killing." The government of a nation may well be justified in forcibly suppressing an internal uprising or revolution. And, just as did the American suppression of the Confederate uprising, this may well necessitate mass killing. But, we may assume, any mass killing will be justified only if necessary for suppressing an uprising that is not justified. If the uprising is justified, mass killing for suppressing it will be unjustified, which may then justify armed, foreign intervention to stop the killing. And for justifying an internal uprising, violations of human rights probably need not be quite as severe or extensive as they should be for justifying armed foreign intervention. We need not, however, pursue these matters any further here.

Finally, to minimize the danger of misapplications enough for the humanitarian- intervention to pass the empirical-clarity test, this principle should be qualified in the same way that the defense and treaty-enforcement principles were qualified; no less than proof beyond a reasonable doubt should be required for concluding that its conditions have been met. Moreover, invasions to stop mass killing should count as justified only if the killing is occurring at present, rather than having occurred in the past or likely to begin in the future. Military invasions should not be undertaken merely to punish those responsible for the mass killing of innocent people that is no longer occurring. Punishing those responsible is no doubt justified, but surely not at the expense of an invasion that would only end up killing still more innocent people. And if a nation were subject to being invaded even after its mass killing had stopped, then the threat of an invasion would provide those responsible for the killing with no incentive to stop or, once they had stopped, to not start again. Nor should military invasions be undertaken merely to prevent mass killing that, although not occurring at present, just might occur in the future. Our inability to foresee the future clearly enough would result in too many miscalculations.

So according to how, as has been argued here, the humanitarian-intervention principle should be interpreted, can the invasion of Iraq be morally justified in terms of this principle? Probably not. As has been argued here, invasions for humanitarian reasons should be undertaken only for stopping genocide, or other unjustified mass killing, that, at the time of the invasion, is in the process of occurring. Although, in Iraq, unjustified mass killing had occurred in the past, it is reasonably clear that it was not occurring at the time of the invasion.11

IX. The Preemption Principle

We come finally to the original justification for the invasion of Iraq. The world these days, so this justification goes, is a more dangerous place than ever before. By using weapons of mass destruction, rogue nations, even terrorist groups, can




potentially inflict massive damage at any time without warning. Therefore, many people these days claim, we must get them before they get us. We must invade rogue nations, as we did Iraq, to prevent them from unjustifiably attacking us first. Those against such invasions might argue that, if a nation has not yet done anything morally or legally wrong, then preemptively invading it would violate the rights ofthat nation. People favoring such invasions might respond, however, by pointing out that we sometimes do, justifiably, take preemptive action against individuals who have not yet done anything morally or legally wrong; for example, for their own protection and that of others, we forcibly incarcerate those who are dangerously insane even though they may not yet have done anything morally or legally wrong. So, people favoring preemptive invasions might ask, why should we not be morally justified in taking preemptive action against nations?

Before addressing this question, some terminological matters must be sorted out. In traditional just war theory a distinction is made between "preemptive" and "preventive" invasions, preemptive invasions being ones for preventing so-called imminent future attacks, and preventive invasions being ones for preventing future attacks that are not imminent. This traditional distinction, however, has probably done more to confuse than clarify. For one thing, those who make this distinction often fail to tell us what exactly makes an attack "imminent." In any case, this traditional distinction serves no purpose here. Here let us simply follow what has already become common usage these days. Let us refer to all invasions for preventing unjust future attacks as "preemptive."

Next, it might be argued that since invasions for purposes of defense are justified and preemptive invasions are for purposes of defense, preemptive invasions are therefore justified. It is true that, in a broad sense of "defense," preemptive invasions are for purposes of defense. But we need to recognize an important distinction here: the distinction between "defensively" invading a nation to fight back against an unjust attack that has already occurred, and, prior to any such attack having already occurred, "defensively" invading a nation to prevent one from occurring in the future. Let us say that, for an invasion to count as "defen- sive," it must be one for fighting back against an unjust attack that has already occurred. And for it to count as "preemptive," it must be an invasion that, prior to any unjust attack having already occurred, is for preventing one from occurring in the future.

Should then preemption be added to the list of just causes for military invasions? Consider this principle: Nation A may invade nation B to prevent B from unjustly attacking some nation in the future if and only if (1) otherwise B's unjust attack will occur, and (2) B has, or is amassing, weapons of mass destruction. Call this the "preemption" principle. Proof beyond a reasonable doubt is the standard that, it is being argued here, morality should require those deciding whether to launch an invasion to use for concluding that the invasion is morally justified. Given how serious a mistake about the morality of an invasion is likely to be, and




how easy it is for a judgment about an invasion's morality to be distorted by mis- information and partiality, if any more lenient standard were permitted, principles for determining the morality of military invasions would fail the empirical-clarity test. So the standard of proof that those deciding whether to launch an invasion should be required by morality to use for concluding that the preemption principle justifies the invasion is proof beyond a reasonable doubt.

Notice, however, that for each of the other principles we have examined for determining the morality of military invasions, the events that justify an invasion have occurred in the past, or are occurring at present. For past or present events, proof beyond a reasonable doubt may well be possible. But the event that justifies an invasion according to condition (1) of the preemption principle occurs in the future. And that is the problem. Earlier, as will be recalled, it was suggested that it makes most sense to mark the beginning of a nation's attack from the point at which its "official" decision to attack occurs, this being whatever overt act successfully puts that huge cooperative endeavor that constitutes an attack into motion for that nation. If indeed this is how it makes most sense to mark the beginning of an attack, then proof beyond a reasonable doubt that a nation will launch an attack in the future requires proving that the attack will be launched even though no official decision to attack has yet been made by that nation itself. Can there really be such proof? The international scene is constantly changing: leaders die, are assassinated, or lose power, other leaders take their place, old alliances between nations crumble, new alliances are created, nonmilitary sanctions take effect, agreements are negotiated, enemy nations become friends, friendly nations become enemies, and on, and on. Richard K. Betts tells us that, during the Stalin years of the Cold War between the United States and Soviet Union, some top officials within the American government believed an attack upon the United States from Stalin was likely, and, to prevent such an attack, they recommended a preemptive invasion of the Soviet Union. But, just a few years later, the threat posed by Stalin had vanished. He was dead.12 And, during the 1960s, other top officials within the American government, believing that an attack from Commu- nist China was likely, recommended a preemptive invasion of China. But, Betts says, the case for the invasion "was washed away when Richard Nixon's secret diplomacy produced the rapprochement of the early 1970s. Overnight, Mao went from being a dire threat to a tacit ally against the Soviet Union."13 The point is this: nothing about the future as enormously complex and uncertain as whether a nation will launch an unjust attack can ever be proven beyond a reasonable doubt. In the real world, as opposed to the hypothetical worlds of philosophers, it cannot be done. For certain kinds of future events, like the "rising" of the sun, proof beyond a reasonable doubt is feasible, but not for a future event dependent upon as many unpredictable variables as an unjust attack.

So if, with any standard more lenient than proof beyond a reasonable doubt, the potential for mistaken conclusions would be too great for principles that



TESTS FOR IRAQ WAR-JUSTIFYING PRINCIPLES 36 1

determine the morality of military invasions to pass the empirical-clarity test, and if, with the preemption principle, proof beyond a reasonable doubt is not feasible, then we must conclude that the preemption principle does not pass the empirical-clarity test. And, generally speaking, would those who approved of their own nation using the preemption principle to justify invading other nations also approve of other nations using it to justify invading their own nation? Prob- ably not; not if justification by way of some more lenient standard of proof were all that was required. Thus the preemption principle probably does not pass the golden rule of principles test either. Failing either test precludes it from being a justifiable principle, a principle in terms of which the 2003 invasion of Iraq can be morally justified.

Could this invasion be morally justified in terms of some other, more care- fully qualified preemption principle, one that would indeed pass all three tests? Perhaps. The prospects of finding such a principle are not, however, promising. This investigation suggests that no principle passing all three tests can morally justify the 2003 invasion of Iraq.

University of Delaware

NOTES

I wish to thank Kai Draper, Erik Haslett, Jeffrey Jordan, and Richard Lacy for helpful comments on an earlier version of this paper.

1 . Certain aspects of traditional just war theory (jus ad helium), such as last resort, proportionality, and just cause, are put to use here. But this inquiry is not a historical discussion or critical evaluation of just war theory. For this, see Michael Walzer, On Just and Unjust Wars (Hammonds worth: Penguin, 1977); or Jeff McMahan, "Just Cause for War," Ethics & International Affairs, vol. 19, no. 1 (2005), pp. 1-21.

2. This is explained in detail in G. J. Warnock, The Object of Morality (London: Methuen, 1971). On "social capital," see Robert D. Putnam, Bowling Alone (New York: Simon & Shuster, 2000).

3. Occasionally in civil trials another standard of proof is used, one referred to as "clear and convincing evidence." Clear and convincing evidence is said to be a standard intermediate in strictness between a preponderance of the evidence and beyond a reasonable doubt. Mathematically, of course, there is ample space to fit an intermediate standard. But, lacking exact probabilities, it is questionable whether the human mind can distinguish what is "clear and convincing" from what is "beyond a reasonable doubt" reliably enough for the distinction to be of any practical value.

4. The UN's International Court of Justice cannot presently serve this purpose. It has jurisdiction over a state only on the basis ofthat state's consent, and has no means of enforcing its decisions.




5. See, for example, Philip M. Mouch, "Last Resort and Just War," Public Affairs Quarterly, vol. 20, no. 3 (July 2006), pp. 235-246; and Thomas Hurka, "Proportionality in the Morality of War" Philosophy & Public Affairs, vol. 33 (2005), pp. 34-66.

6. The 9/11 Commission Report: Final Report of the National Commission on Ter- rorist Attacks Upon the United States (New York: W. W. Norton, 2004).

7. Some have argued that Resolution 1441, adopted by the UN Security Council in November 2002, constituted official UN authorization for invading Iraq. Clearly it did not. This resolution concludes by saying that the Security Council will "remain seized of the matter," which is UN talk for saying that the Security Council will remain concerned about the matter, with the final decision to come later. Had Resolution 1441 actually authorized the use of force, it would have been vetoed by France, Russia, and China. See, e.g., Peter Singer, The President of Good & Evil (New York: Dutton, 2004), chap. 8, esp. pp. 154-158.

8. See, for example, David Mellow, "Iraq: A Morally Justified Resort to War," Journal of Applied Philosophy, vol. 23, no. 3 (2006), pp. 293-310; and A Matter of Principle: Humanitarian Arguments for War in Iraq, ed. Thomas Cushman (Berkeley: University of California Press, 2003).

9 . As Rob Lawlor shows in "Luck, Evidence, and War," Journal of Applied Philosophy, vol. 23, no. 3 (2006), pp. 247-257, the morality of an invasion does not depend merely upon whether, by "luck," the consequences of the invasion happen to turn out well.

10. Kenneth Roth, "War in Iraq: Not a Humanitarian Intervention," http://hrw.org/ wr2k4/3.htm, p. 3.

1 1 . For example, in "War in Iraq: Not a Humanitarian Intervention," Roth - on behalf of the Human Rights Watch, whose job it is to document such violations - writes that "only mass slaughter might permit the deliberate taking of life involved in using military force for humanitarian purposes" (p. 3), and "on the eve of the latest Iraq war, no one contends that the Iraqi government was engaged in killing of anywhere near this magnitude, or had been for some time" ( p. 5).

12. Richard K. Betts, "Striking First: A History of Lost Opportunities," Ethics and International Relations, vol. 17 (2003), pp. 17-24, p. 21.

13. Ibid., p. 22.



three tests that principles for justifying the invasion of iraq must pass

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