A "Just War"?

In an article entitled DefiningA Just War in the October 29 issue of The Nation, Richard Falkdeclares that "The war in Afghanistan ... qualifies in my understanding asthe first truly just war since World War II." Falk goes on to warn that thejustice of the cause may be "negated by the injustice of improper means andexcessive ends," but this caveat doesn't take away from his initialdeclaration. He didn't say that a unilateral U.S. military response to theevents of September 11 could be just, but that "the war" is just. Thissentence, coming as it does from one of the country's most prominent andrespected advocates of international peace and justice, will have, I'm afraid,profoundly deleterious consequences. "This is a just war," people willsay; "even Richard Falk says so." And his later points about the needfor following the legal and moral principles of necessity, proportionality,discrimination, and humanity will be largely ignored.

But even if we interpret Falk's position as saying that a U.S. war could bejust, as long as it follows the principles he elaborates, his argument is stillterribly wrong. First, because his principles were violated from day one of thewar, and, second, because he dismisses the alternative of acting through theUnited Nations.

One doesn't know exactly when Falk finalized his article. Perhaps by now --as UN officials and aid agencies are pleading for a halt in the bombing so thatfood can get to literally millions of Afghans at risk of starvation -- he hascome to believe that the war has crossed the line from just to unjust. But therewere warnings about the impact of bombing on desperate Afghan civilians wellbefore the first bomb fell. (For example, the New York Times reported [30Sept. 2001] that "the threat of American-led military attacks turns"the Afghan people's "long-running misery into a potentialcatastrophe.") That a great humanitarian crisis was likely in the event ofbombing was known, and thus the war never met Falk's criteria of discrimination(don't harm civilians), proportionality (force must not be greater than theprovoking cause), and humanity.

Moreover, the war never met Falk's criterion of necessity (force should notbe used when non-violent means are available). On October 5 -- two days beforethe onset of the bombing -- the Taliban ambassador to Pakistan stated: "Weare prepared to try him if America provides solid evidence of Osama bin Laden'sinvolvement in the attacks on New York and Washington." Asked if bin Ladencould be tried in another country, the ambassador said, "We are willing totalk about that, but ... we must be given the evidence." Indeed, said theambassador, legal proceedings could begin even before the United States offeredany evidence: "Under Islamic law, we can put him on trial according toallegations raised against him and then the evidence would be provided to thecourt." Washington dismissed the ambassador's remarks, refused to provideevidence, declared that its demands were non-negotiable, and initiated itsbombardment of Afghanistan. Was the Taliban offer serious? Could it have beenthe basis for further concessions? Who knows? Washington never pursued it.Surely, however, going to war in such circumstances does not meet the criterionof necessity.

Falk rejects a pacifist response to the events of September 11, and I thinkhe's right: on a hijacked plane heading into a skyscraper, force may be neededto stop the slaughter; and if terrorists who direct these hijackings refuse tovoluntarily turn themselves in, then force may be necessary to apprehend themand bring them to justice. Falk rejects as well a response of excessivemilitarism, and again I think he's correct (though he fails to see how theexcessive militarism he rejects shares many features with the actual war beingwaged, the war he terms "truly just").

Another approach Falk rejects is one which emphasizes the role of the UnitedStates in the world. Falk agrees with proponents of this approach thatWashington is "certainly responsible for much global suffering andinjustice, giving rise to widespread resentment that at its inner core fuels theterrorist impulse." Falk agrees too that longer-term concerns must beaddressed, including "finding ways to promote Palestinianself-determination, the internationalization of Jerusalem and a more equitabledistribution of the benefits of global economic growth and development" --though he oddly adds that "of course, much of the responsibility" forfailing to address these concerns "lies with the corruption and repressivepolicies of governments, especially in the Middle East, outside the orbit of USinfluence." But while regimes outside the U.S. orbit, such as Iraq, Syria,and Libya, are no doubt vile, it is hard to see what responsibility they bearfor preventing Palestinian self-determination. The obstruction there would seemto come from Washington itself and from a country very much within the U.S.sphere: namely, Israel. Nor do Iraq, Syria, and Libya have nearly as much to dowith global inequality as those nations closely tied to the United States --Saudi Arabia and the Gulf oil sheikdoms.

Palestinian self-determination is not simply a "longer-termconcern." True, its impact on anti-U.S. terrorism will not be immediate. AnIsraeli withdrawal from the occupied territories tomorrow would not erasedecades of deep anti-Americanism from the minds of many Middle Easterners. Butpeace in Palestine would immediately end the terrorism being experienced on adaily basis by Palestinians (as well as Israelis).

Still, Falk is right that all people are entitled to security, and Americansare not wrong to be concerned about their well-being as long as the peopleresponsible for the horrific attack of September 11 remain at large.

So how might the culprits be brought to justice? One option is to use the UNor international law (which -- unlike the pacifist position -- does not precludethe use of force) to apprehend the suspects in order to place them on trial forcrimes against humanity. Such an approach, says Falk, would not "dealeffectively with the overall threat." But Falk's arguments here areextremely weak.

Falk says first that there are problems with a public trial. I'll considerwhether these problems are as serious as Falk suggests, but notice first theimplication of Falk's position. The United States issued an ultimatum to theTaliban to turn over bin Laden and his Al Qaeda associates. Let's say they didso. What would Falk have had the United States do with them then? Execute themwithout a trial? Hold a secret trial and then execute them? If you object onprinciple to publicly trying bin Laden and company then you are objecting toWashington's public position. (I say Washington's "public" position,because the United States' dismissal of the Taliban's October 5 offer shows itwas never interested in a turn-over.) To say that bin Laden should not be triedis saying that the United States should not even have demanded that bin Laden beturned over, but instead simply begun bombing.

What are the problems with public prosecution, according to Falk?

It would be impossible to persuade the United States government to empower such a tribunal unless it was authorized to impose capital punishment, and it is doubtful that several of the permanent members of the Security Council could be persuaded to allow death sentences.

What is Falk saying? That this is a just war because the alternative would bea policy which the United States wouldn't accept? Since when do we judge whethera country's policy is right by reference to whether the country likesalternative policies? Iraq invaded Kuwait in 1990 in part because Kuwait wasviolating its oil production quotas to Iraq's detriment. Would anyone think ofjustifying the Iraqi invasion by noting that it would be impossible to persuadeBaghdad to pursue the alternative course of action -- negotiation?

Now perhaps what Falk really means is that a trial would be wrong because he,Falk, would not accept any punishment short of the death penalty. If so, heought to say this, and not put it on the U.S. government. Some progressives mayfeel that they could make an exception to their usual opposition to capitalpunishment in this case, but in fact the argument against the death penalty isstronger, rather than weaker, in cases of terrorism. As terrorism experts note,while executing a lone murderer may not propel very many people to becomemurderers, executing a terrorist leader with many followers creates a martyr andbuilds support for the terrorist cause. In any event, to justify the U.S. war onthe grounds that "several permanent members of the Security Council"(that is, Britain and France) oppose the death penalty is bizarre to say theleast.

Falk goes on to spell out what he sees as the problems with a public trial:

the evidence linking bin Laden to the September 11 attacks and other instances of global terrorism may well be insufficient to produce an assured conviction in an impartial legal tribunal, particularly if conspiracy was not among the criminal offenses that could be charged. European and other foreign governments are unlikely to be willing to treat conspiracy as a capital crime.

We should reject a trial because the evidence may not be sufficient toconvict? But yet the evidence is good enough to wage war, with all itshorrendous consequences? And then there's that capital punishment argumentagain: the evidence may be sufficient only if conspiracy can be charged -- whichof course it can be -- but this may preclude execution. So instead we follow acourse that will knowingly lead to a huge number of deaths.

Falk goes on to note that "it strains the imagination to suppose thatthe Bush Administration would relinquish control over bin Laden to aninternational tribunal." But, again, is it the job of the Left to supportwars -- and deem them "truly just" -- whenever the nation waging thewar is unwilling to act in a just and reasonable way? It no doubt strained theimagination to suppose that the United States government would have allowedelections in Vietnam in 1956 which would probably have been won by Ho Chi Minh.But would anyone conclude that therefore Washington was justified in waging waron Vietnam?

Falk continues with more in the same vein: "it also seems highlyimprobable that the US government can be persuaded to rely on the collectivesecurity mechanisms of the UN...." It was also highly improbably that AlCapone could have been persuaded to rely on legal methods of earning a living.That doesn't make his criminal activities "truly just."

For better and worse, the United States is relying on its claimed right ofself-defense, and Washington seems certain to insist on full operational controlover the means and ends of the war that is now under way.

Yes, indeed, Washington is insisting on full operation control. But the Leftis not supposed to merely note Washington's insistence, but criticize it whenthat insistence is wrong.

Falk then declares that

...at this stage it is unreasonable to expect the US government to rely on the UN to fulfill its defensive needs. The UN lacks the capability, authority and will to respond to the kind of threat to global security posed by this new form of terrorist world war.

The first sentence is somewhat ambiguous. Is Falk saying only that it isunreasonable to expect Washington to rely on the UN? (This is true. It isunreasonable to expect the United States to act lawfully in general, given itslong record of ignoring international law, thumbing its nose at the UN, andchoosing military solutions to problems that might have been solved peacefully.)Or is he saying that it is unreasonable for the U.S. government to rely on theUN, the interpretation suggested by the second sentence in the quotation above?

Why does the UN lack the "capability, authority, and will" torespond to terrorism? In terms of authority, the UN has the legal right to takeany measures that it deems necessary to deal with terrorism, while the U.S.right to act is legally constrained -- yes, it may act in self-defense to anarmed attack, but self-defense applies only to cases where (in the words of theCaroline precedent) "necessity of that self-defense is instant,overwhelming, and leaving no choice of means, and no moment fordeliberation." So self-defense would permit the United States to shoot downattacking enemy planes, but not to wage a war half way around the globe a monthafter a terrorist attack, a war that U.S. officials say might go on for years.

What about the UN's capability? The UN is an extremely weak institution andhas no military units of its own. To be sure, one reason the UN is so weak isbecause major powers, not least the United States, have determined to keep itineffective. So Washington has been delinquent in paying its UN dues, hasrefused to establish a Military Staff Committee that could coordinate a UNmilitary response, has failed to provide the UN with military contingents (ascalled for in Chapter VII of the UN Charter), and has flouted international law(ignoring, for example, the ruling of the World Court demanding that the U.S.cease what were essentially terrorist acts against Nicaragua). But despite thesepast failings of the United States, there is no reason the UN would be incapableof action today if the United States allowed it to do so. The Security Councilcould call for the turn-over of those responsible for the September 11 attacksand if force were needed to get them, it could request the loan of appropriateforces from member states, including the United States, that would operate underthe direction and control of the Security Council. The only obstacle to thishappening is the cooperation of the United States government. So once again wemeet Falk's strange moral logic: the U.S. war in Afghanistan is "trulyjust" because the UN is incapable of acting by virtue of the U.S.unwillingness to go to the UN.

Why does all this matter? Why should we care whether the United States goesto war on its own or instead goes through the United Nations, which may employforce? It matters to us for precisely the reasons it matters -- from the otherside -- to the U.S. government. Why has Washington avoided going to the UN?First, because doing so would establish the precedent that the United States isbound by law and can't do just whatever it feels like. The Bush administrationdoesn't want this precedent and, correspondingly, we should want it. We shouldwant a world where -- as much as possible -- law, not vigilantism, prevails.

Second, the U.S. resists going to the UN because it will then not have fullfreedom of action. Once it is determined that "something" should bedone about the September 11 perpetrators, there are countless decisions to bemade and the question is: who is to make them? Should these decisions be made byWashington or by some international body? The Bush administration wants to keepall decision-making in its own hands. We should want -- as much as possible --to minimize unilateral decision-making by the United States. Is there aguarantee that the UN would make better decisions than Washington? No. But ifone considers the crucial decisions, there is good reason to believe that the UNwould have decided better. And many of these decisions involve precisely thesorts of concerns that Falk raised when he described the problems with themilitarist approach.

The UN would have been likely to demand evidence, rather than just takingGeorge Bush's word for bin laden's guilt. The UN would have been more likely topursue the Taliban's offer to turn over bin Laden. Perhaps the UN would havedetermined that the offer was just a stalling tactic. But shouldn't thisdetermination be made by an international body rather than by one country alone?Consider: there was a terrorist bombing of the legislature in Indian-heldKashmir on October 1, killing dozens of civilians. India suspected Pakistaniinvolvement. Would we want India to issue an ultimatum to Pakistan and thendecide whether Pakistan has complied, and then, if New Delhi decides no, itlaunches a war? This is a prescription for disaster. Would anyone consider sucha war "truly just"?

Another reason why we shouldn't want individual nations deciding on their ownto launch a war to combat terrorism is that any war involves serious negativehuman consequences. Pacifists believe that these adverse consequences outweighany conceivable justification for war. Non-pacifists believe that sometimes waris the only way to prevent even more horrible outcomes, but surely the mostcareful moral consideration must precede any decision for war. So who shouldmake this moral determination? In Afghanistan, it is excruciatingly clear thatthe harm to the civilian population is immense. The United States might believethat these civilian deaths will be "worth it" (to use MadeleineAlbright's response when she was asked about the half million dead fromsanctions on Iraq), but is this really something to be decided by the Bushadministration alone? By saying that it is "just" for the UnitedStates to be waging this war outside the confines of the United Nations, Falkhas removed the one potential check on unilateral U.S. action. The well-being ofmillions of people in Afghanistan are on the line, and it can't possibly beright that their fate -- and the value of their lives -- should be determinedunilaterally by Washington. Of course, actions that kill large numbers ofcivilians should be condemned whether or not there is the UN imprimatur. But adecision by the UN is likely to be more just than one made alone by the UnitedStates.