War and Political Theory by Orend Brian;

Author:Orend, Brian;
Language: eng
Format: epub
ISBN: 9781509525003
Publisher: John Wiley & Sons, Inc.
Published: 2019-05-27T00:00:00+00:00

4.2.2 Anticipatory Attack, Especially on Iraq

The GWOT underwent a significant – perhaps sideways, or even backwards – development with America’s invasion of Iraq less than two years later in May 2003. The invasion is important not only for that reason but also for problematizing the issue of whether any non-defensive use of political violence might ever be justified. Can an anticipatory attack, or pre-emptive strike, ever be legitimate? We’ve seen that the LOAC offers a purely procedural answer: yes, but only if there has been a prior authorizing vote allowing for such by the UNSC. Was such UNSC authorization offered to America for the 2003 Iraq invasion? No: after Russia and China made clear that they would veto any such petition for authorization, the US declined to bring the resolution to a vote – but proceeded to invade anyway, for reasons detailed below. As a result of this move, of proceeding without legal blessing, almost no international lawyers – not even American ones – will say that the 2003 Iraq war was permitted by the LOAC. Many references abound, in this regard, to “an illegal war.”27

There’s a difference of opinion within JWT regarding anticipatory attack. Some are what we might call “strict defense purists,” who insist that morally you must wait until you are actually attacked with aggression, and only then are you entitled to respond either in self- or other defense. To do anything else would be, in the memorable words of Spanish Renaissance theologian Vitoria, “to punish a man for a sin he has yet to commit.” Strict defense purists will sometimes further say that anticipatory attack is, by definition, at odds with the other jus ad bellum rule of last resort: it’s difficult indeed to claim that you’ve exhausted all other options when you’re the one who strikes first.28

Opposing the defense purists in this regard are just war revisionists. We shall see throughout chapters 4–6 that there is an internal “team tension,” or “sibling rivalry,” between these two groups: more traditional, conventional just war theorists with quite conservative and literal readings of just war and international law rules; and the revisionists, who think that the principles behind the rules are more important, and accordingly have a broader, more liberal reading – with some quite interesting and even surprising implications. One of them is allowance, in principle, for anticipatory attack. How do they justify this?

Jeff McMahan, a talented and influential revisionist, says that it’s crucial to note that defense has actually never been entirely passive, reactive, and backward-looking. Even when an aggressor A has already attacked a victim V, a major objective in V’s resort to defensive force in reply has always been to prevent yet more harm at the hands of A and to make A stop its aggression. And so, it has (pace Vitoria) never truly been “traditional” for defense merely to imply “the second party to use force.” The essence of defense, rather, has always been about protection: the protection of lives as well as the protection of such vital values as freedom and security.

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