Is This Really a Just War? – Letter to the Editor – The Nation – with Jules Lobel

Richard Falk’s endorsement of a limited war is fraught with immeasurable harm. Thousands of refugees are fleeing daily; the United Nations is predicting the death of 100,000 children; and hate for Americans is pouring into the streets of Pakistan, Indonesia and other Muslim countries. We are creating the terrorists that will visit terror upon our children. Pakistan, with its nuclear arsenal, may be destabilized. Innocents have been killed, and we may face a fractionalized and warfaring post-Taliban Afghanistan.

There was another way. Treat the attacks on September 11 as a crime against humanity (mass or systematic killing of civilians), establish a UN tribunal, extradite or, if that fails, capture the suspects with a UN force and try them. The US experience with Libya demonstrates both the perils of a military response and the possibilities for international justice. US officials believed that the 1986 bombing of Libya led to the downing of Pan Am 103 and that more bombing would lead to a spiraling cycle of violence. The United States turned to the UN, which applied international pressure; eventually the Libyans extradited the suspects for trial.

The objections Falk makes to such a tribunal revolve primarily around his belief that Washington would not accept such a court, in part because the court might not be authorized to give the death penalty. But since when should respected international legal experts like Falk, who generally favor peaceful resolutions of conflicts, shy away from arguing what is right simply because they believe the United States will not listen? Falk says that it is “unreasonable to expect the US government to rely on the UN to fulfill its defensive needs.” But Falk did not think that it was unreasonable for the Kuwaitis to rely on the UN to counteract Iraqi aggression in 1990. Is Falk bowing to US exceptionalism–the UN is good for everybody else, but not for the only superpower?

It is remarkable that Falk, while recognizing that the global role of the United States has given rise to widespread resentment that fuels the terrorist impulse, claims that this role “cannot be addressed so long as this movement of global terrorism is at large.” But it is now that we must examine this resentment: our tilt in the Palestinian-Israeli conflict, the use of the Persian Gulf as a US base and support for corrupt, authoritarian regimes. We must do so not to “give in to terrorists” but to promote a more just and peaceful world and to enhance our long-term security. To do so only when the global terrorist movement is no longer “at large” insures that such an examination will never occur.

Developing a proper response to terrorism is incredibly difficult, and no short-term solution seems particularly attractive. Only by taking the road toward creating a more equal, democratic and just world can we create conditions of security from terrorism for our children. Bombing Afghanistan–whatever the justness of the cause–seems the wrong way to start down that path.

Center for Constitutional Rights


Text of Article

Defining a Just War Ends and Means

By Richard Falk October 11, 2001

I have never since my childhood supported a shooting war in which the United States was involved, although in retrospect I think the NATO war in Kosovo achieved beneficial results. The war in Afghanistan against apocalyptic terrorism qualifies in my understanding as the first truly just war since World War II. But the justice of the cause and of the limited ends is in danger of being negated by the injustice of improper means and excessive ends. Unlike World War II and prior just wars, this one can be won only if tactics adhere to legal and moral constraints on the means used to conduct it, and to limited ends.

The perpetrators of the September 11 attack cannot be reliably neutralized by nonviolent or diplomatic means; a response that includes military action is essential to diminish the threat of repetition, to inflict punishment and to restore a sense of security at home and abroad. The extremist political vision held by Osama bin Laden, which can usefully be labeled “apocalyptic terrorism,” places this persisting threat well outside any framework of potential reconciliation or even negotiation for several reasons: Its genocidal intent is directed generically against Americans and Jews; its proclaimed goal is waging an unconditional civilizational war–Islam against the West–without drawing any distinction between civilian and military targets; it has demonstrated a capacity and willingness to inflict massive and traumatizing damage on our country and a tactical ingenuity and ability to carry out its missions of destruction by reliance on the suicidal devotion of its adherents.

There are three types of responses to the attack, each of which contains some merit and enjoys some support. None of them are adequate, however.

I. ANTIWAR/PACIFIST APPROACH The pacifist position opposing even limited military action overlooks the nature of the threat and is thus irrelevant to meeting the central challenge of restoring some sense of security among our citizenry and in the world generally.

Also, in the current setting, unlike in the civil rights movement and the interventionist conflicts of the cold war era (especially Vietnam), antiwar and pacifist stands possess little or no cultural resonance with the overwhelming majority of Americans. It may be that at later stages of the war this assessment will prove to have been premature, and even now Quaker, Christian, Gandhian and Buddhist forms of pacifism offer a profound critique of wars. These critiques should be seriously heeded, since they lend weight to the the view that the use of force should be marginal and kept to an absolute minimum. Certainly the spiritually motivated pacifist witness can be both inspirational and instructive, and help to mitigate and interrogate militarist postures.

Another form of antiwar advocacy rests on a critique of the United States as an imperialist superpower or empire. This view also seems dangerously inappropriate in addressing the challenge posed by the massive crime against humanity committed on September 11. Whatever the global role of the United States–and it is certainly responsible for much global suffering and injustice, giving rise to widespread resentment that at its inner core fuels the terrorist impulse–it cannot be addressed so long as this movement of global terrorism is at large and prepared to carry on with its demonic work. These longer-term concerns–which include finding ways to promote Palestinian self-determination, the internationalization of Jerusalem and a more equitable distribution of the benefits of global economic growth and development–must be addressed. Of course, much of the responsibility for the failure to do so lies with the corruption and repressive policies of governments, especially in the Middle East, outside the orbit of US influence. A distinction needs to be drawn as persuasively as possible between inherently desirable lines of foreign policy reform and retreating in the face of terrorism.

II. LEGALIST/UN APPROACH International treaties that deal with terrorism on civil aircraft call for cooperation in apprehending suspects and allow for their subsequent indictment and prosecution by national courts. Such laws could in theory be invoked to capture Osama bin Laden and his leading associates and charge them with international crimes, including crimes against humanity. A tribunal could be constituted under the authority of the United Nations, and a fair trial could then be held that would avoid war and the ensuing pain, destruction and associated costs. The narrative of apocalyptic terrorism could be laid before the world as the crimes of Nazism were bared at Nuremberg.

But this course is unlikely to deal effectively with the overall threat. A public prosecution would give bin Laden and associates a platform to rally further support among a large constituency of sympathizers, and conviction and punishment would certainly be viewed as a kind of legal martyrdom. 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. Beyond this, 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. And it strains the imagination to suppose that the Bush Administration would relinquish control over bin Laden to an international tribunal. On a more general level, it also seems highly improbable that the US government can be persuaded to rely on the collective security mechanisms of the UN even to the unsatisfactory degree permitted during the Gulf War. To be sure, the UN Security Council has provided a vague antiterrorist mandate as well as an endorsement of a US right of response, but such legitimizing gestures are no more than that. For better and worse, the United States is relying on its claimed right of self-defense, and Washington seems certain to insist on full operational control over the means and ends of the war that is now under way. Such a reliance is worrisome, given past US behavior and the somewhat militaristic character of both the leadership in Washington and the broader societal orientation in America toward the use of overwhelming force against the nation’s enemies.

Yet 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 UN was established to deal with wars among states, while a transnational actor that cannot be definitively linked to a state is behind the attacks on the United States. Al Qaeda’s relationship to the Taliban regime in Afghanistan is contingent, with Al Qaeda being more the sponsor of the state rather than the other way around.

Undoubtedly, the world would be safer and more secure with a stronger UN that had the support of the leading states in the world. The United States has for years acted more to obstruct than to foster such a transformation. Surely the long-term effects of this crisis should involve a new surge of support for a reformed UN that would have independent means of financing its operations, with its own peacekeeping and enforcement capabilities backed up by an international criminal court. Such a transformed UN would generate confidence that it could and would uphold its charter in an evenhanded manner that treats people equally. But it would be foolish to pretend that the UN today, even if it were to enjoy a far higher level of US support than it does, could mount an effective response to the September 11 attacks.

III. MILITARIST APPROACH Unlike pacifism and legalism, militarism poses a practical danger of immense proportions. Excessive reliance on the military will backfire badly, further imperiling the security of Americans and others, spreading war and destruction far afield, as well as emboldening the government to act at home in ways that weaken US democracy. So far the Bush Administration has shown some understanding of these dangers, going slowly in its reliance on military action and moving relatively cautiously to bolster its powers over those it views as suspicious or dangerous, so as to avoid the perception of waging a cultural war against Islam. The White House has itself repeatedly stressed that this conflict is unlike previous wars, that nonmilitary means are also important, that victory will come in a different way and that major battlefield encounters are unlikely to occur.

Such reassurances, however, are not altogether convincing. The President’s current rhetoric seems to reflect Secretary of State Colin Powell’s more prudent approach, which emphasizes diplomacy and nonmilitary tactics, and restricts military action to Al Qaeda and the Taliban regime. Even here, there is room for dangerous expansion, depending on how the Al Qaeda network is defined. Some maximalists implicate twenty or more countries as supporters of terrorism. Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and others are definitely beating the drums for a far wider war; they seem to regard the attacks as an occasion to implement their own vision of a new world, one that proposes to rid the world of “evil” and advances its own apocalyptic vision. This vision seeks the destruction of such organizations as Hezbollah and Hamas, which have only minimal links to Al Qaeda and transnational terror, and which have agendas limited mainly to Palestinian rights of self-determination and the future of Jerusalem. These organizations, while legally responsible for terrorist operations within their sphere of concerns, but also subject to terrorist provocations, have not shown any intention of pursuing bin Laden’s apocalyptic undertaking. Including such groups on the US target list will surely undermine the depth and breadth of international support and engender dangerous reactions throughout the Islamic world, and possibly in the West as well.

Beyond this, there is speculation that there will be a second stage of response that will include a series of countries regarded as hostile to the United States, who are in possession of weapons of mass destruction but are not currently related to global terrorism in any significant fashion. These include Iraq, Libya and possibly even Syria, Iran and Sudan. To expand war objectives in this way would be full of risks, require massive military strikes inflicting much destruction and suffering, and would create a new wave of retaliatory violence directed against the United States and Americans throughout the world. If military goals overshoot, either by becoming part of a design to destroy Israel’s enemies or to solve the problem of proliferation of weapons of mass destruction, the war against global terrorism will be lost, and badly.

Just as the pacifist fallacy involves unrealistic exclusion of military force from an acceptable response, the militarist fallacy involves an excessive reliance on military force in a manner that magnifies the threat it is trying to diminish or eliminate. It also expands the zone of violence in particularly dangerous ways that are almost certain to intensify and inflame anti-Americanism. It should be kept in mind that war occasions deep suffering, and recourse to international force should be both a last resort and on as limited a scale as possible.

But there is a fourth response, which has gained support among foreign policy analysts and probably a majority of Americans.

IV. LIMITING MEANS AND ENDS Unlike in major wars of the past, the response to this challenge of apocalyptic terrorism can be effective only if it is also widely perceived as legitimate. And legitimacy can be attained only if the role of military force is marginal to the overall conduct of the war and the relevant frameworks of moral, legal and religious restraint are scrupulously respected.

Excessive use of force in pursuing the perpetrators of September 11 will fan the flames of Islamic militancy and give credence to calls for holy war. What lent the WTC/Pentagon attack its quality of sinister originality was the ability of a fanatical political movement to take advantage of the complex fragility and vulnerability of advanced technology. Now that this vulnerability has been exposed to the world, it is impossible to insure that other extremists will not commit similar acts–even if Osama bin Laden is eliminated.

The only way to wage this war effectively is to make sure that force is used within relevant frameworks of restraint. Excessive force can take several forms, like the pursuit of political movements remote from the WTC attack, especially if such military action is seen as indirectly doing the dirty work of eliminating threats to Israel’s occupation of Palestinian territories and Jerusalem. Excessiveness would also be attributed to efforts to destroy and restructure regimes, other than the Taliban, that are hostile to the United States but not significantly connected with either the attack or Al Qaeda.

The second, closely related problem of successfully framing a response is related to the US manner of waging war: The US temperament has tended to approach war as a matter of confronting evil. In such a view, victory can be achieved only by the total defeat of the other, and with it, the triumph of good.

In the current setting, goals have not been clarified, and US leaders have used grandiose language about ending terrorism and destroying the global terrorist network. The idea of good against evil has been a consistent part of the process of public mobilization, with the implicit message that nothing less than a total victory is acceptable. What are realistic ends? Or put differently, what ends can be reconciled with a commitment to achieve an effective response? What is needed is extremely selective uses of force, especially in relation to the Taliban, combined with criminal law enforcement operations–cutting off sources of finance, destroying terrorist cells, using policing techniques abetted, to the extent necessary, by paramilitary capabilities.

Also troubling is the Bush Administration’s ingrained disdain for multilateralism and its determination to achieve security for the United States by military means–particularly missile defense and space weaponization. This unilateralism has so far been masked by a frantic effort to forge a global coalition, but there is every indication that the US government will insist on complete operational control over the war and will not be willing to accept procedures of accountability within the UN framework.

The Administration has often said that many of the actions in this war will not be made known to the public. But an excessive emphasis on secrecy in the conduct of military operations is likely to make the uses of force more difficult to justify to those who are skeptical about US motives and goals, thus undercutting the legitimacy of the war.

In building a global coalition for cooperative action, especially with respect to law enforcement in countries where Al Qaeda operates, the US government has struck a number of Faustian bargains. It may be necessary to enter into arrangements with governments that are themselves responsible for terrorist policies and brutal repression, such as Russia in Chechnya and India in Kashmir. But the cost of doing so is to weaken claims that a common antiterrorist front is the foundation of this alliance. For some governments the war against apocalyptic terrorism is an opportunity to proceed with their own repressive policies free from censure and interference. The US government should weigh the cost of writing blank checks against the importance of distinguishing its means and ends from the megaterrorist ethos that animated the September 11 attacks. There are some difficult choices ahead, including the extent to which Afghan opposition forces, particularly the Northern Alliance, should be supported in view of their own dubious human rights record.

How, then, should legitimacy be pursued in the current context? The first set of requirements is essentially political: to disclose goals that seem reasonably connected with the attack and with the threat posed by those who planned, funded and carried it out. In this regard, the destruction of both the Taliban regime and the Al Qaeda network, including the apprehension and prosecution of Osama bin Laden and any associates connected with this and past terrorist crimes, are appropriate goals. In each instance, further specification is necessary. With respect to the Taliban, its relation to Al Qaeda is established and intimate enough to attribute primary responsibility, and the case is strengthened to the degree that its governing policies are so oppressive as to give the international community the strongest possible grounds for humanitarian intervention. We must make a distinction between those individuals and entities that have been actively engaged in the perpetration of the visionary program of international, apocalyptic terrorism uniquely Al Qaeda’s and those who have used funds or training to advance more traditional goals relating to grievances associated with the governance of a particular country and have limited their targets largely to the authorities in their countries, like the ETA in Spain and the IRA in Ireland and Britain.

Legitimacy with respect to the use of force in international settings derives from the mutually reinforcing traditions of the “just war” doctrine, international law and the ideas of restraint embedded in the great religions of the world. The essential norms are rather abstract in character, and lend themselves to debate and diverse interpretation. The most important ideas are:

  • the principle of discrimination: force must be directed at a military target, with damage to civilians and civilian society being incidental;
  • the principle of proportionality: force must not be greater than that needed to achieve an acceptable military result and must not be greater than the provoking cause;
  • the principle of humanity: force must not be directed even against enemy personnel if they are subject to capture, wounded or under control (as with prisoners of war);
  • the principle of necessity: force should be used only if nonviolent means to achieve military goals are unavailable.

These abstract guidelines for the use of force do not give much operational direction. In each situation we must ask: Do the claims to use force seem reasonable in terms of the ends being pursued, including the obligation to confine civilian damage as much as possible? Such assessments depend on interpretation, but they allow for debate and justification, and clear instances of volatile behavior could be quickly identified. The justice of the cause and of the limited ends will be negated by the injustice of improper means and excessive ends. Only the vigilance of an active citizenry, alert to this delicate balance, has much hope of helping this new war to end in a true victory.