On the Use of Unmanned Aerial Vehicles

Operationally, remote-controlled weapons are force multipliers. Politically, unmanned aerial vehicles (UAVs) can cut both ways: their use minimizes casualties, but they can also be used in “inconvenient” ways. Ethically, the military use of UAVs or drones are controversial in two ways: their use for assassinations and their overall use in the context of Just War Theory.

An MQ-9 Reaper UAV flies over the Nevada Test and Training Range and performs live-fire exercises.
(U.S. Air Force photo by Airman 1st Class Victoria Nuzzi)

Use for Targeted Assassination

Probably the most controversial use of drones is when the target is an American citizen. This is exactly what happened on 30 September 2011 when Anwar al-Awlaki was executed in the second of two CIA drone missile attacks against him.

In reading biographical information on al-Awlaki, one must ask oneself: in what sense was he a citizen?

Al-Awlaki was born of Yemeni parents who were living in New Mexico at the time, but the family returned to Yemen when he was seven years old. He later returned to the US and soon got on the FBI radar, which of course amounted to nothing even though he has certainly either influenced or played an operational role in numerous terrorist actions against the United States¹:

• He had extended contact with at least two of the 9/11 hijackers
• He had direct contact and influenced Nidal Hasan to commit the 2009 Fort Hood shooting
• One of his students, a member of al-Qaeda, was the "Underwear Bomber" who attempted to bomb a Northwest Airlines flight on Christmas 2009
• The Times Square bomber was also a follower of Al-Awlaki
• He issued a fatwa against the organizer of the "Everybody Draw Mohammed Day" contest
• He also influenced Omar Mateen's shooting at the Pulse Night Club in Florida. (I lost an acquaintance in that attack.)

Through his teachings, Al-Awlaki denounced America and influenced others to take direct action against her. Regardless of whether birthright citizenship is legal or ethical, Al-Awlaki was a US citizen only in the sense that in some database, a box next to his name was checked.

There is apparently a legal framework against extrajudicial killing. Section 2.11 of the 2008 amended EO 12333 explicitly prohibits assassination^{2 3}. It is unclear how the assassination was squared with that EO.

Al-Awlaki was charged in absentia in Yemen for being a member of al Qaeda. It isn't clear at all why he couldn't be tried in absentia in a US court. The rules for such trials are well-established but were not followed by the Obama administration.

Nasser al-Awlaki, Anwar's father, filed for injunction prior to both drone strikes, but Nasser lacked locus standi. It is unknown how Nasser learned that his son was on the targeted killing list.

The only objectional part of Al-Awlaki's death by drone strike, I claim, is that he wasn't tried in absentia. It is uncertain whether Al-Awlaki could have been extradited from Yemen, which is where he was killed. Lawsuits before and following his death seeking the release of the standards under which an American can be so targeted have apparently been unsuccessful.

So, was al-Awlaki's execution legal? We may never know as the standards for extrajudicial killing still appear to be a secret. All we know is that it couldn't have happened to a more deserving person.

Overall Drone Use

The use of drones has been addressed by just war theorists, including Bradley Jay Strawser. In his 2010 paper “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles,”⁴ he begins by distinguishing “man-in-the-loop” or “man-on-the-loop” weapon systems from “man-out-of-the-loop” systems. He rejects the latter but argues that the use of man-in-the-loop and man-on-the-loop weapons are morally justifiable.

Strawser raises and addresses six objections to UAV usage. Here are two of them.

One of his objections is that UAVs lead to violations of the jus in bello Principle of Discrimination, the idea being that poor-quality or unreliable video feeds would limit the ability of the pilot to discriminate between combatant and non-combatant. This is a limitation that currently is not true, and Strawser quotes statistics showing that, in comparison to conventional forces, UAVs resulted in far fewer noncombatant deaths relative to combatant deaths. Further, by flying at lower altitudes than manned aircraft, more accurate targeting is to be expected. Finally, Strawser notes that the manufacturer of a missile designed for use on UAVs (a drone on a drone) has achieved “urban warfare precision,” and that the missile is controlled after it has been launched (“fire, observe, and update” as opposed to “fire and forget”).

Another objection is that UAVs create an unjust asymmetry in combat, in that “one side literally does not take any life-or-death risks whatsoever (or nearly so, since its warfighters are not even present in the primary theater of combat) whereas the opposing side carries all the risk of combat.” His response is perhaps the strongest part of his paper:

[T]here is no chivalrous reason for a just combatant to ‘equal the playing field’ or ‘fight fair.’ If combatant A fights under a just cause, while combatant B fights for an unjust cause, combatant A owes nothing to combatant B by way of exposing his/herself to some minimal threshold of risk. Thus, it is right for combatant A to reduce the risk in an engagement with the unjust enemy.

Worded another way: if we find ourselves in a “fair fight,” we make it unfair to our opponents, however possible.

One objection Strawser doesn’t raise is the problem of the drone pilot’s location. Range matters, and the remote-controlled weapons from previous wars all required the pilot or operator to be either in-theater or very close.

Again, range matters. At some point, the range of American artillery exceeded that of an enemy’s. Does this mean that the enemy surrenders without a fight? No: the enemy will simply attack from a position so close that the use of our artillery would be prohibitive because of the likelihood of harming our own troops.

What would an enemy do when facing-off against a UAV system? There are at least four points of vulnerability: the drone itself, the takeoff and landing site(s) of the drone, the communication system controlling the drone, and the drone’s pilot. Just as in the case of the artillery, the enemy will move close to attack. This means that the pilot is a legitimate target.

In the case of drones, though, the pilot could be located within the United States. For example, Anwar al-Awlaki was executed while in Yemen, but the drone pilot was located at the Creech Air Force Base outside Las Vegas, Nevada⁵.

Thus, there was a legitimate target for the enemy within our own borders.

This is not to say that this renders the use of UAVs unethical, but it does raise an issue that policy makers do not seem to consider.

Footnotes

1. Shane, “The Enduring Influence of Anwar al-Awlaki in the Age of the Islamic State.”
2. Executive Order 12333 United States Intelligence Activities
3. Slick, S. “Modernizing the IC “Charter”: The 2008 Amendments to Executive Order 12333, United States Intelligence Activities”.
4. Strawser, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.”
5. Zegart, Spies, Lies, and Algorithms: The History and Future of American Intelligence

Bibliography

Shane, S. “The Enduring Influence of Anwar al-Awlaki in the Age of the Islamic State.” CTC Sentinel (9) No. 7, July 2016. Retrieved 28 June 2024 from https://ctc.westpoint.edu/the-enduring-influence-of-anwar-al-awlaki-in-the-age-of-the-islamic-state/

Slick, S. “Modernizing the IC “Charter”: The 2008 Amendments to Executive Order 12333, United States Intelligence Activities”. Studies in Intelligence (58), No. 2 (Extracts, June 2014). Retrieved 27 June 2024 from https://www.cia.gov/resources/csi/static/2008-Amendments-Executive-Order.pdf

Strawser, B. “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.” Journal of Military Ethics 9 no. 4, 2010. https://doi.org/10.1080/15027570.2010.536403

“Executive Order 12333 United States Intelligence Activities” Code of Federal Regulations. Retrieved 27 June 2024 from https://dpcld.defense.gov/Portals/49/Documents/Civil/eo-12333-2008.pdf

Zegart, A. Spies, Lies, and Algorithms: The History and Future of American Intelligence. Princeton University Press, 2022.

Review of Strawser’s "Moral Predators"

Historical Introduction

Remote-controlled weapons are not a new technology: the Soviets used “teletanks” – radio-controlled tanks with a range of just under a mile – during the Winter War, and the Nazis experimented with the “Goliath tracked mine” during World War II that had a similar range. Going back further, in World War I the Germans developed the “Ferlenkboot” - remote controlled boats with a range of approximately 12 miles – for use against British ships in the English Channel and off the coast of Flanders.

Three aspects make contemporary unmanned aerial vehicles (UAVs) different from these other unmanned weapons: first, the pilot of a UAV can be on the other side of Earth from the UAV itself; second, they are a proven and effective weapon system; third, they were developed and are heavily used by the United States. This last difference is the main reason why UAVs have drawn the attention of just war theorists – notice the lack of outcry over the suicide drone boats used by Iran and Houthi rebels.

In his 2010 paper “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles”¹, Bradley Jay Strawser argues that there is nothing wrong in principle with the use of UAVs, and in fact their use should be obligatory. He explains the “obligatory” part as being a duty, but later in the paper² he provides a better explanation. To explain why UAVs are not wrong in principle, he addresses six objections that can be made to their use.

A General Atomics MQ-1 Predator, armed with AGM-114 Hellfire missiles, piloted by Lt. Col. Scott Miller on a combat mission over southern Afghanistan. (U.S. Air Force Photo / Lt. Col. Leslie Pratt)

Objections Addressed by Strawser

The first objection is that the adoption of UAVs will lead to fully autonomous weapons, or what Strawser calls IAWs (independent autonomous weapons); IAWs are morally impermissible; therefore, UAV development is impermissible. Strawser raises this issue to delimit the scope of his paper strictly to “human-in-the-loop” or “human-on-the-loop” weapon systems and avoid “human-out-of-the-loop” systems. He rejects this argument because there is no proof that development of UAVs necessarily leads to IAWs, and that it is possible to continue UAV development and usage while banning IAW development – which he recommends Western nations do³.

The second objection is that UAVs lead to violations of the jus in bello Principle of Discrimination, the idea being that poor-quality or unreliable video feeds would limit the ability of the pilot to discriminate between combatant and non-combatant. This is a limitation that currently is not true, and he quotes statistics showing that, in comparison to conventional forces, UAVs resulted in far fewer noncombatant deaths relative to combatant deaths. Further, by flying at lower altitudes than manned aircraft, more accurate targeting is to be expected. Finally, Strawser notes that the manufacturer of a missile designed for use on UAVs has achieved “urban warfare precision,” and that the missile is controlled after it has been launched (“fire, observe, and update” as opposed to “fire and forget”).

It mustn’t be forgotten that UAVs are still piloted vehicles, their pilots are just not aboard them. This can lead, so the third objection goes, to cognitive dissonance on the part of UAV operators. The pilot can “kill the enemy from their ‘desk’ at work and then go home to dinner and their child’s soccer match,” and this somehow places unnecessary psychological stress on the pilot. In addition, since the pilot can view his profession as a video game, this would lead to either “weakening the operator’s will to fight” or lead to frequent violations of the Principle of Discrimination.

Strawser responds to this by noting that since the pilot is in no personal danger, the temptation to commit jus in bello violations is lessened. Also, the pilot can evaluate the target before firing. All UAV action can be recorded and monitored, and this provides an additional layer of accountability: “an entire team of officers and human rights lawyers could oversee every single lethal decision made by a UAV.” Finally, UAV-pilot-specific cognitive dissonance can be lessened by moving the pilot in-theater.

The fourth objection raised is that targeted killings (assassinations) fall outside the bounds of acceptable Just War Theory⁴, and UAVs somehow make the practice too easy. The issue here, Strawser notes, is one of policy and not the technology. There are three adjacent concerns: sovereignty issues, “ignoble warfare,” and the extent that UAVs make assassinations easy.

The first corollary is really a legal issue – lawyers can argue that sending UAVs into another country’s airspace is not the same a sending manned airplane or an agent – and is not relevant to most drone strikes. The third concern (that UAVs make assassinations not only possible but easy), is not a strike against UAVs themselves but rather their usage.

The second corollary concern – that using UAVs constitutes a form of “ignoble warfare” – is perhaps the most interesting objection one can make. Strawser states this objection in full as follows: “the battle for the ‘hearts and minds’ of local nationals in a given theater is significantly worsened by what they view as ignoble warfare; UAVs are thought to be ‘cowardly.’”

“So be it,” Strawser responds. He should have stopped there, but he goes on to admit that if studies prove that the winning of ‘hearts and minds’ is indeed made more difficult, then UAVs should not be used.

Strawser’s fifth objection is that UAVs create an unjust asymmetry in combat, in that “one side literally does not take any life-or-death risks whatsoever (or nearly so, since its warfighters are not even present in the primary theater of combat) whereas the opposing side carries all the risk of combat.” His response (except for subsequent over-analysis) is perhaps the strongest part of this paper:

[T]here is no chivalrous reason for a just combatant to ‘equal the playing field’ or ‘fight fair.’ If combatant A fights under a just cause, while combatant B fights for an unjust cause, combatant A owes nothing to combatant B by way of exposing his/herself to some minimal threshold of risk. Thus, it is right for combatant A to reduce the risk in an engagement with the unjust enemy.

The sixth and final objection Strawser addresses is that UAVs lower the jus ad bellum threshold, in that UAVs improve the likelihood of success. This objection is falls in the same way that the fifth objection falls. There is nothing special here about the use of UAVs: any difference in technology between two enemy nations would be exploited to increase the probability of success of any military action.

Two Further Objections

Two additional objections, not addressed by Strawser, can be made to the use of UAVs.

Objection: UAVs are strictly a rich nation’s weapon⁵.

Response: This is simply not the case. Ukraine (though certainly not a poor nation thanks to American taxpayer support) is effectively utilizing off-the shelf commercially available drones in their war against Russia. These drones do not cost a fortune but can be obtained for at most a few hundred dollars each.

Objection: the drone pilot’s location is… problematic.

Response: At some point, the range of American artillery exceeded that of an enemy’s. Does this mean that the enemy surrenders without a fight? No: the enemy will simply attack from a position so close that the use of our artillery would be prohibitive because of the likelihood of harming our own troops.

Now consider what an enemy would do when facing off against a UAV system. There are at least four points of attack: the drone itself, the takeoff and landing site(s) of the drone, the communication system controlling the drone, and the drone’s pilot. Just as in the case of the artillery, the enemy will move close to attack. This means that the pilot is a legitimate target. In the case of drones, though, the pilot could be located within the United States. Thus, there is a legitimate target within our own borders. This is not to say that this renders the use of UAVs unethical, but it does raise an issue that policy makers do not seem to consider.

Conclusions

As with any weapons system, the use of UAVs introduces a range of problems. This is exemplified by the 30 September 2011 drone strike that killed terrorist Anwar al-Awlaki. Al-Awlaki was an American citizen; he was killed while in Yemen; the drone strike was a CIA operation; and the pilot was located at the Creech Air Force Base outside Los Vegas, Nevada⁶.

Strawser separates the legal, political, and technological problems raised by incidents like that, and instead focuses on the ethical problems associated with UAVs. He considers the use of UAVs in the framework of Just War Theory and finds that by themselves, UAVs do not alter the justness of unjustness of either a war or an action taken during that war.

 

Footnotes

1. Bradley Strawser, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.”
2. See Strawser’s response to the fifth objection, below.
3. Does he also recommend non-Western nations ban the development of IAWs, too?
4. A person holding a “Realist War Theory” would not subscribe to that position.
5. This wording is used at the start of Simpson & Müller “Just War and Robot’s Killings.”
6. Amy Zegart, Spies, Lies, and Algorithms.

Bibliography

Simpson, T. & Müller, V. “Just War and Robot’s Killings.” The Philosophical Quarterly (1950-) 66 no. 263, April 2016. https://www.jstor.org/stable/24672810

Strawser, B. “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.” Journal of Military Ethics 9 no. 4, 2010. https://doi.org/10.1080/15027570.2010.536403

Zegart, A. Spies, Lies, and Algorithms: The History and Future of American Intelligence. Princeton University Press, 2022.

Legal and Moral Authorization to Conduct the Gulf War

Introduction: Historical and Operational

On 2 August 1990, the Iraq military, under command of Saddam Hussein, invaded Kuwait. The invasion not only left Iraq in possession of Kuwait’s people, land, and mineral resources, it also left Iraq in a position to attack Saudi Arabia, which Saddam had threatened to do. This led to the Gulf War of 1990-1991 in which the United States and her allies fought to restore Kuwait’s independence and to protect Saudi Arabia’s territory.[1] [2]

There were two phases to the Gulf War: Operation Desert Shield and Operation Desert Storm. Of the two, Desert Shield is most relevant here.

Operation Desert Shield was primarily an operational stage in that military resources were positioned and coordinated so that they could be used to accomplish specific political goals. The idea is, to quote Clausewitz, “that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means.” In the Gulf War, the political objectives were to liberate Kuwait and to protect the sovereignty of Saudi Arabia[3].

USMC patrol near a burning well close to Kuwait City on March 7, 1991. (AP)

Legal Authorizations of the Gulf War[4]

Immediately following the invasion, President George H. W. Bush issued executive orders[5] banning trade and financial transactions with Iraq as well as implementing a travel ban. He further ordered that Iraqi assets within the US be frozen. Two days later, the House and Senate separately passed legislation supporting those executive orders, but neither of these were signed into law.

These executive orders were mirrored by the UN Security Council when it passed Resolution 661 on 6 August 1990 which imposed numerous economic sanctions on Iraq. These sanctions included bans on trade and financial transactions, except for medicines and food; a freezing of Iraqi government assets abroad; embargos on oil and arms; and so on. Approximately one hundred and ten countries took part in the embargo.

Bush began building an international coalition to isolate Iraq both militarily and diplomatically. The coalition was (at the time) unique in that it had a single purpose and was not meant to be long-term. Bush and his ambassadors were even able to alienate Iraq from members of the Arab League. Israel was kept neutral to avoid destabilizing the coalition, even though Iraq launched Scud missiles targeting Israel during the last month of Desert Shield.

Meanwhile, coalition military assets were being positioned in the region in readiness for Desert Storm.

On 29 November 1990, the UN Security Council adopted Resolution 678, which authorized coalition members to use all necessary means to secure peace, giving Iraq a deadline of 15 January 1991 to withdraw from Kuwait.

On 14 January, the day before the UN deadline, the 102nd Congress passed H.J.Res.77, the Authorization for Use of Military Force Against Iraq Resolution, which was the closest Congress came to an actual declaration of war. George H. W. Bush signed it into law (Public Law No: 102-1), and in his signing statement, Bush announced that

…[M]y request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.[6]

Saddam Hussein ignored the UN deadline for withdrawal, and Operation Desert Storm began on 17 January 1991.

Just War Theory and the Gulf War

Just War Theory (JWT) is a tradition of military ethics that uses criteria to ensure that a war is ethically justifiable. Western JWT began with Saint Augustine and was refined and extended by Saint Thomas Aquinas. The tradition continues through the 1992 Catechism of the Catholic Church. Contemporary JWT, as espoused by Michael Walzer[7], for example, is secular but maintains several Christian attributes, notably an altruistic ethical foundation.

In either the Christian or secular forms, JWT has two primary components: criteria for when to justly begin a war (jus ad bellum) and criteria for just conduct during war (jus in bello)[8]. Of the two components, jus ad bellum would be most relevant here.

To justly enter a state of war, the war must satisfy all of the following criteria: war must be publicly declared by the appropriate authority; it must be for just cause and just intentions; it must be a last resort; the means used must be proportional to the provocation; and there must be a reasonable chance of success.

As the sole power to declare war is granted to Congress by the Constitution, the Gulf War does not satisfy the jus ad bellum criterion that a just war must be publicly declared by the proper authority.

The “just cause” and “just intentions” criteria are highly subjective, but these are usually taken to mean that the goal of a war is to redress harms, address human rights violations, and reestablish a just peace. The Gulf War could pass those criteria.

The “option of last resort” criteria was also met, since both the US and UN imposed economic sanctions on Iraq immediately following their invasion of Kuwait, and the UN gave an explicit deadline for Iraq to withdraw along with a clear statement of what would happen if they didn’t. Between the first imposition of sanctions by the US and the UN’s deadline for withdrawal, 166 days elapsed, which was more than sufficient time for economic sanctions to hit home. Diplomacy failed; economic sanctions failed; war thus became the last resort.

The “reasonable chance of success” criteria was also satisfied: between the far larger American military and the operational and logistical preparations made before Desert Storm began, success was highly likely.

Finally, the “proportional response” criterion is met, presumably: the coalition forces were used against Iraq’s to evict them from Kuwait and to prevent excursions into Saudi Arabia all while leaving Iraq able to defend itself from Iran. Others would point to the large number of casualties together with harms caused by the economic sanctions as proof that the response was not proportional.

JWT requires all these jus ad bellum criteria to be met for a nation to justly enter a state of war. There never was a declaration by the appropriate authority[9]; whether the proportional response criterion was satisfied is debatable; and the just cause and good intentions are extremely subjective. The Gulf War violated the proper declaration condition, so it cannot be considered a just war.

It must be noted that (besides pacifism) there is at least one other ethical theory of war, which is usually called “realist.” This theory holds that a war must be declared and executed only in a nation’s best interest. The goal of JWT is to minimize the brutality or war; a side effect of the realist position is to shorten the duration and frequency of wars. Unfortunately, realist war theories are presented only as a straw man[10], and the theory currently lacks a holistic exposition.

Conclusion

In the case of the Gulf War, the legal and the moral justifications were at odds: the war was certainly sanctioned by the United Nations and (while stopping short of a full declaration of war) it was approved by Congress; according to Just War Theory (either biblical or secular), it was an unjust war.

There is an additional justification that must be considered: popular support. This must be considered under Clausewitz’s people-military-government trinity, and it explains the incessant and fawning media coverage the Gulf War received, making it into what was sometimes called the “video game war.”

In reviewing the buildup to the war, one must wonder why George H. W. Bush went through the media and the UN as opposed to petitioning Congress[11]. The answer lies in his signing statement for the Authorization for Use of Military Force Against Iraq Resolution – he explicitly doubted the constitutionality of the War Powers Resolution. Instead of addressing that directly or addressing the problems the WPR was meant to correct, he ignored it. This is something all subsequent presidents would do.

Footnotes

[1] Westermeyer, Liberating Kuwait.

[2] Stewart, War in the Persian Gulf.

[3] Snow, D. & Drew, D. From Lexington to Baghdad and Beyond.

[4] The chronology of events in this section follows Englehardt, “Desert Shield and Desert Storm”

[5] EO 12722 and 12723.

[6] Bush, Bush, Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq.

[7] Walzer, Just and Unjust Wars.

[8] A third component (jus post bellum) that addresses justice following the conclusion of a war, was added relatively late in the Just War Tradition.

[9] This is disputed in O’Brien, “Desert Storm: A Just War Analysis.”

[10] Frowe, The Ethics of War and Peace.

[11] Burgin, “Rethinking the Role of the War Powers Resolution.”

Bibliography

Authorization for Use of Military Force Against Iraq Resolution of 1991, Public Law No: 102-1, Retrieved 16 May 2024 from https://www.congress.gov/bill/102nd-congress/house-joint-resolution/77/text

Burgin, E. “Rethinking the Role of the War Powers Resolution: Congress and the Persian Gulf War.” Notre Dame Journal of Legislation 21 (no. 23) (1995). Retrieved 15 May 2024 from https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1232&context=jleg

Bush, G. H. W. Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq. Public Papers of the Presidents of the United States: George H. W. Bush (1991, Book I), 14 January 1991. Retrieved 16 May 2024 from https://www.govinfo.gov/content/pkg/PPP-1991-book1/html/PPP-1991-book1-doc-pg40.htm

Englehardt, J. P. “Desert Shield and Desert Storm: A Chronology and Troop List for the 1990-1991 Persian Gulf Crisis.” Strategic Studies Institute, U.S. Army War College, 25 March 1991. Retrieved 13 May 2024 from https://apps.dtic.mil/sti/pdfs/ADA234743.pdf

Frowe, H. The Ethics of War and Peace. Routledge, 2022.

O’Brien, W. “Desert Storm: A Just War Analysis.” St. John’s Law Review 66 (no. 3), Fall 1992. Retrieved 16 May 2024 from https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1794&context=lawreview

Snow, D. & Drew, D. From Lexington to Baghdad and Beyond: War and Politics in the American Experience. Routledge, 2009.

Stewart, R. War in the Persian Gulf: Operations Desert Shield and Desert Storm August 1990 – March 1991. Center of Military History, May 2010. Last retrieved 12 May 2024 from https://history.army.mil/html/books/070/70-117-1/CMH_70-117-1.pdf

Walzer, M. Just and Unjust Wars. Basic Books 2015.

Westermeyer, P. Liberating Kuwait: U.S. Marines in the Gulf War, 1990–1991. History Division USMC, 2014. Retrieved 13 May 2024 from https://www.usmcu.edu/Portals/218/Liberating%20Kuwait.pdf

Invasion Phase of the War in Afghanistan: A Jus post Bellum Analysis

Introduction

The War in Afghanistan occurred in two stages: the first was the invasion in 2001, the second was the insurgency phase which lasted from the end of the invasion until American withdrawal in 2021. The difference (besides switching from symmetric to asymmetric warfare) is usually accounted for by a change of enemy: during the invasion-phase the enemy was the Islamic Emirate’s military, and afterwards it was the Taliban.

This paper begins with a review of modern (“maximalist”) jus post bellum theory as exposed by Brian Orend. The theory is then critically examined both independent of the rest of Just War Theory as well as how jus post bellum relates to jus ad bellum and jus in bello. Finally, it is applied to the end of the invasion phase of the War in Afghanistan.

Jus post Bellum, Old and New

Frowe distinguishes¹ between a minimalist and maximalist approach to jus post bellum.

The minimalist approach, advocated by the diplomat and legal theorist Hugo Grotius, is designed to rein-in the zeal of the victor. It considers jus post bellum criteria as permissions: what the victors are allowed to do in victory. The minimalist theory allows the victors to take actions that “protect themselves, recover that which was illicitly taken, [and] punish the perpetrators.” Temporary occupation is acceptable, colonization is not. Further, it is unacceptable to force the inhabitants of the defeated nation into slavery.

The maximalist approach imposes obligations on the victors instead of granting them permissions. The concern is not that the victor’s actions must be limited, but rather that the victor will do too little, leaving the defeated nation a failed and dysfunctional state.

Orend’s Jus post Bellum Criteria

Orend claims² that a just peace must satisfy all of the following criteria:

Rights vindication – “The settlement should secure those basic rights whose violation triggered the justified war. The relevant rights include human rights to life and liberty and community entitlements to territory and sovereignty.”³

Proportionality and publicity – Conditions stipulated by the peace treaty should not be vengeful and should be publicly available.

Discrimination – Isolate civilians from punitive measures.

Punishment of leaders – Leaders of the defeated nation must be punished, as a deterrence to future aggression, to spur atonement, and “failing to punish the aggressor degrades and disrespects the worth, status, and suffering of the victim.”⁴

Punishment for war crimes – Combatants on all sides must be held accountable for any war crimes.

Compensation – Subject to proportionality and discrimination.

Rehabilitation – Aggressor state may require demilitarization and political rehabilitation (regime change).

Problems with Jus post Bellum Criteria by Itself

The main problem with jus post bellum criteria is that it commits the victor to nation-building. Orend requires that we restore rights, including “community entitlements to territory and sovereignty,” not just individual rights. He goes on to require that the victorious nation must⁵:

• “Provide effective military and police security for the whole country.”
• “Revamp educational curricula to purge past propaganda and cement new values.”
• “Ensure that the benefits of the new order will be (i) concrete, and (ii) widely – not narrowly – distributed.”

We must provide military defense, police, an educational system, and a distributive economic system for the defeated nation. We’re responsible for their long-term care, well-being, and protection. We’re not just stopping a war; we’re exporting a progressive’s conception of democracy. Orend explicitly acknowledges this, summoning the spirit of Immanuel Kant and stating that for the defeated nation, “the utmost which can be done to it in vindication of international law and order is the establishment of a more peaceable and progressive social order within it.”⁶

Frowe notes that the maximalist jus post bellum as espoused by Orend is grounded in liberal theory and international law⁷; she is being literal here, and the foreign policy required by Orend (and Kant) is best described as “liberal imperialism”⁸ and commits us to being not only the world’s policemen but also the world’s social workers.

Relationship to the Rest of Just War Theory

Other than the Doctrine of Discrimination, discussed in next section, the maximalist approach to jus post bellum interacts with at least two other criteria from Just War Theory: the “reasonable chance of success” criterion from jus ad bellum and the proportionality requirement from jus in bello.

If a likelihood of success is required before entering into war, then the nation building described above must be part of the calculation. Rebuilding a whole nation in the way described by Orend is a truly massive undertaking that is unlikely to succeed, as illustrated by the insurgency stage of the War in Afghanistan. Thus, the probability of success is lowered.

The type and amount of collateral damage inflicted must also be considered, as the victor nation is responsible for rebuilding the infrastructure damaged during the war. Under this, the cost of reconstruction must play a role in determining whether to attack a specific target, and not just military benefit. The evaluation of proportional response is thus distorted by economic concerns.

The Doctrine of Discrimination

The Doctrine of Discrimination, usually considered part of jus in bello, arises again in Orend’s jus post bellum criteria: the civilians⁹ of the defeated nation must be isolated from punitive economic measures enforced by the victor. The doctrine thus plays the same role in both jus post bellum and jus in bello theories: avoid harming the civilians. The Doctrine of Discrimination is problematic in both theories because it makes a crucial assumption about the civilians of the enemy nation: that they are “innocent.”

How do civilians get along in a totalitarian regime? It is popularly assumed that they have no choice in the matter, that they (as a whole) were forced to live in a dictatorship. Is this really the truth? There are numerous examples of dictators who won office through popular election.

Further, members of the populace frequently act as informants, collaborators, or private enforcers of the government edicts. A good example of this came after the fall of the Berlin Wall: once Germany was reunited, lists of collaborators with the East German Stasi were released, and it has been calculated that 18% of the population of the city of Rostock were informers.¹⁰

A more recent and close-to-home example of private individuals and companies taking on the role of law enforcement happened during the lockdowns, vaccine mandates, and mask mandates in 2020 – 2023: examples of government enforcement of these mandates (for example, discharging military members for refusing vaccination) did occur, but it was far more common to have private people and institutions act as enforcers¹¹.

No, private individuals and non-combatants are far from innocent, and this undercuts the Doctrine of Proportionality. This will become extremely relevant in the next section.

Conclusion - Application of Jus post Bellum to the War in Afghanistan

During both phases of the war, the United States clearly distinguished the military vs. civilian parts of Afghani culture and endeavored to avoid or at least limit the use of force against civilians as much as possible. In that, we followed the Doctrine of Discrimination, taking no punitive actions against non-combatants and requiring almost no cultural changes. In fact, we went out of our way to leave as little of an “American culture footprint”¹² as possible.

Examples of this were the so-called “Cultural Support Teams”¹³ and the “Female Engagement Teams.”¹⁴ The goals of both programs were to build relationships with Afghani women by sending female soldiers or Marines to meet with them and earn their trust. They were initially controversial because they involved placing females into combat situations. The real controversy should have been the extent that the teams kowtowed to the misogynistic aspects of Afghani culture: female soldiers and Marines were required to always wear head coverings and always have male escorts, even when security was not a major concern. Both CSTs and FETs were considered failures.

More egregious examples of this “cultural support” were the continuation of child marriages and bacha bazi, the latter being the purchase and use of adolescent and pre-adolescent boys for sex by mature male adults. Bacha bazi was outlawed by occupation forces¹⁵ as well as by the Taliban (both before and after American withdraw). However, U.S. forces were explicitly instructed to ignore instances of such sexual abuse. According to the father of one Marine in Afghanistan, “my son said that his officers told him to look the other way because it’s their culture.”¹⁶ A Special Forces soldier was relieved of his command after acting against an Afghan perpetrator.¹⁷ The practice continues unabated.

Bacha Bazi in Afghanstan. Photo from the Indian Times

While all this was happening, foreign policy experts were arguing for “the separation of mosque and state.”¹⁸ It was clear that the Americans thought it was sufficient to replace the Islamic Emirate with the Islamic Republic, substituting one system of government with another.

Was the period following the end of the combat phase of the War in Afghanistan a just peace? In one sense it was, because we undertook the process of rebuilding that nation. In another sense it was not, because we never defeated the real enemy, the “innocent” Afghan civilians.

Footnotes

1. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
2. Brian Orend, “Jus Post Bellum: The Perspective of a Just-War Theorist.”
3. Ibid.
4. Ibid.
5. All quotes from ibid.
6. Ibid.
7. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
8. Dan Cox, “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.”
9. Orend specifies “civilians” and avoids discussion of non-combatants and other edge-cases.
10. Peter Wensierski, "East Germany thrived on snitching lovers, fickle friends and envious schoolkids."
11. Madeline Chambers, “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.”
12. Ben Connable. “Human Terrain System is Dead, Long Live … What?”
13. Megan Katt, “Blurred Lines: Cultural Support Teams in Afghanistan.”
14. Anna Coll, “Evaluating Female Engagement Team Effectiveness in Afghanistan.”
15. Chris Mondloch, “Bacha Bazi: An Afghan Tragedy.”
16. Joseph Goldstein, “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.”
17. Ibid.
18. Alexander Bernard, “The Advantage to Islam of Mosque-State Separation: What the American Founders can teach.”

Bibliography

Bernard, A. “The Advantage to Islam of Mosque-State Separation: What the American Founders can teach.” Hoover Institution, 29 January 2008. Retrieved 4 May 2024 from https://www.hoover.org/research/advantage-islam-mosque-state-separation

Chambers, M. “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.” Reuters, 2 April 2020. Retrieved 4 May 2024 from https://www.reuters.com/article/idUSKBN21K2RD/

Coll, A. “Evaluating Female Engagement Team Effectiveness in Afghanistan.” Wellesley College Honors Thesis Collection, April 2012. Retrieved 5 May 2024 from https://core.ac.uk/download/pdf/217003814.pdf

Connable, B. “Human Terrain System is Dead, Long Live … What?” Military Review, January-February 2018. Retrieved 5 May 2024 from https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/January-February-2018/Human-Terrain-System-is-Dead-Long-Live-What

Cox, D. “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.” Orbis 57 no. 4, Autumn 2013. https://doi.org/10.1016/j.orbis.2013.08.010

Frowe, H. The Ethics of War and Peace. Routledge, 2022.

Goldstein, J. “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.” New York Times, 20 September 2015. Retrieved 5 May 2024 from https://www.nytimes.com/2015/09/21/world/asia/us-soldiers-told-to-ignore-afghan-allies-abuse-of-boys.html

Katt, M. “Blurred Lines: Cultural Support Teams in Afghanistan.” Joint Force Quarterly 75, no. 4. October 2014. Retrieved 5 May 2024 from https://ndupress.ndu.edu/JFQ/Joint-Force-Quarterly-75/Article/577569/blurred-lines-cultural-support-teams-in-afghanistan/

Mondloch, C. “Bacha Bazi: An Afghan Tragedy.” Foreign Policy, 28 October 2013. Last retrieved on 4 May 2024 from https://foreignpolicy.com/2013/10/28/bacha-bazi-an-afghan-tragedy/

Orend, Brian. “Jus Post Bellum: The Perspective of a Just-War Theorist.” Leiden Journal of International Law 20, no. 3, September 2007. https://doi.org/10.1017/S0922156507004268

Wensierski, P. "East Germany thrived on snitching lovers, fickle friends and envious schoolkids." Australian Financial Review, 23 December 2015. Last retrieved 5 May 2024 from https://www.afr.com/life-and-luxury/arts-and-culture/stasi-snitches-all-around-records-reveal-true-extent-of-telling-on-others-20151116-gkzu44

Another Jus in Bello Evaluation of Hiroshima and Nagasaki

Just finished responding to a jus in bello analysis of Hiroshima and Nagasaki written by an active-duty Marine. He is a Staff Sergeant who is also an assistant instructor at a Naval ROTC program at a midwestern state university. Said Marine wrote an essay stating that using nuclear weapons on Hiroshima and Nagasaki were morally wrong. He was using the same Just War Theory and he sites the exact same facts as I did in my previous post, but he drew the exact opposite conclusion.

Unfortunately his post is private and I don't have permission to republish it here. Below is my hastily-written response. If it wasn't so rushed, I would expand on the "non-combatant vs supporter" theme by writing:

Just War Theorists go through considerable wrangling to determine who is a legitimate target and who isn't. In her text, Frowe talks about how "wide" to cast a net in order to catch the right targets:
     too wide = all combatants plus some non-combatants
     too narrow = some (but not all) combatants plus no non-combatants.
If we do cast too wide, which non-combatants are to be included as targets? The obvious targets, like civilians working in armament plants, makes sense. I would claim that the "journalists" who screeched for war, the politicians who clamored for war, and the defense contractors who profit before, during, and after the war make for far better targets than the actual combatants due to the amount of harm they cause.

An assumption that needs to be checked is the "innocence" of non-combatants. It may be more accurate to call them "supporters" or "enablers," or at least some of them. Their innocence is problematic because of the way the general citizenry frequently get along in a totalitarian country such as Imperial Japan. When Germany was reunited after the fall of the Berlin Wall, lists of collaborators, informants, and other people who worked with the East German Stasi were released, and those were not short lists!

The following is my response to his essay.

Respectfully sir, you are wrong. Here's why...

In Chapter 5, Frowe¹ lays all the cards on the table regarding jus in bello criteria. After giving a straw-man version of "realism," the main part of the chapter begins by saying that jus ad bellum and jus in bello must be kept logically separate. One of the reasons given is that the combatants may be conscripts, therefore the warfighters are tools and cannot be held morally responsible for their leaders. Those who accept that reasoning don't realize that at any point in history where conscription was used, there have always been draft resisters. For those who do volunteer, Frowe states² that "by enlisting, they wave their right not to be killed in battle by the other side. They are therefore not wronged by being killed..." It isn't exactly clear how they give up their right to life, and many would claim that the right to life is one of the reasons why we do fight.

To get the Principle of Discrimination working, Frowe then attempts to distinguish between "combatants" and "non-combatants". A "Realist War Theorist" (the belief system I hold) would instead distinguish between "combatants" and "enablers" or "combatants" and "supporters," but let's continue with her dichotomy. For JWT, this creates a 4-way classification system - friendly combatants, our non-combatants, enemy combatants, and enemy non-combatants. There is much wrangling in Chapter 5 about the "value" assigned to the people in each class. There's nothing wrong with this.

On friendly combatants vs enemy combatants, the Just War Theorist Michael Walzer states³ "the moral status of individual soldiers on both sides is very much the same" and that "they face one another as moral equals." Really? By this, US Marines and soldiers are morally equivalent to the Japanese soldiers who participated in the "rape of Nanking." This was a six week long massacre that started when the Imperial Japanese Army invaded the Chinese city of Nanking⁴ in December 1937, during which 200,000 to 300,000 residents were killed, anywhere from 20,000 to 80,000 women and children raped, and 30,000 to 40,000 POWs executed.

An Imperial Japanese soldier, smiling, prepares to publicly behead a Chinese boy. Bettmann/Getty Images

Combining Walzer's position with the above quote from Frowe means our men are not wronged by being killed. As leaders, the men under our command are the most valuable things in the world. Those who have not been in that position would say "if they were so valuable, you would take them out of the combat zone." That only shows a lack of understanding of what warfighters and leading warfighters are all about: they follow you because they wish to follow themselves through you.

The Principle of Discrimination requires friendly non-combatants and enemy non-combatants to also be morally equal: they are both innocents not to be harmed. Really? When I read that, the following comparison jumped to mind: when 9/11 occurred, there were pictures of New Yorkers running away from the collapsing buildings, and there were pictures of people in the Middle East jumping with joy. People who hold non-combatants on both sides are equal must say that those are the same pictures.

Our combatants are more valuable than enemy combatants, and our non-combatants are more valuable than enemy non-combatants. This is why you fight for the men beside you and those behind you. This is also why you don't change sides. Believing this doesn't make you a “rampaging militiaman” as Frowe dismissively states⁵ (she's obviously never met a militiaman), it just means you have your priorities straight.

Regards,
Mike K

Footnotes

1. Helen Frowe, The Ethics of War and Peace.
2. Ibid.
3. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations.
4. Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II.
5. Helen Frowe, The Ethics of War and Peace.

Bibliography

Chang, I. The Rape of Nanking: The Forgotten Holocaust of World War II. Basic Books, 2012.

Frowe, H. The Ethics of War and Peace. Taylor & Francis, 2022.

Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations. Basic Books, 2015.

Hiroshima and Nagasaki, a Jus in Bello Evaluation

Introduction

On 6 and 9 August 1945, the United States used nuclear weapons against the Japanese cities of Hiroshima and Nagasaki, resulting in anywhere from 129,000 to 226,000 deaths[1]. In discussing the ethical status of these events at the conclusion of the War in the Pacific, it is common (perhaps universal?) amongst Just War Theorists to treat the two bombings as a pair, that they were morally equivalent, i.e. the bombings of Hiroshima and Nagasaki were both just or both unjust. Two other possibilities are not mentioned: that the bombing of Hiroshima was unjust but the bombing of Nagasaki was just, or the reverse, that Hiroshima was just but Nagasaki was unjust. These two possibilities are not considered here, subtle and interesting that they may be, and these events will be considered morally equivalent as the jus in bello criteria are applied.

Principle of Discrimination

The Principle of Discrimination presupposes that a distinction exists between people who are threats and those that aren’t, or who are combatants and who are non-combatants[2]. The Principle requires that non-combatants are not to be directly targeted by attacks.

At the time, precision guided weapons were decades away. Also, irregular warfare (assuming terrorist mass-casualty tactics are not employed) is capable of targeted killings (very akin to assassinations) and targeted destruction of infrastructure. America could not wait for precision weapons to be developed, and the War in the Pacific was not an asymmetric war (except for Mao Tse-Tsung's guerrillas fighting the Japanese in China).

The effective discrimination between combatants and non-combatants thus depends on the technology available and the type of war being fought. Evaluation of the use of atomic weapons must be based on those factors.

The targets of the use of the atomic bombs were not chosen to maximize the number of non-combatant deaths. Instead, they were chosen by the Target Committee for their military significance[3]: Hiroshima contained a major military base and embarkation port. Naval ordnance was manufactured in Nagasaki, and that city was also the site of major shipbuilding and ship repair facilities. One proposed target, Kyoto, was rejected because of its cultural and religious significance[4].

Because of all this, the Principle of Discrimination was respected in the use of atomic weapons: the targets were chosen so that facilities relevant to the Japanese war machine would be made unavailable.

Principle of Proportionality

The Principle of Proportionality regarding a particular tactic requires that the value gained by the tactic is "worth" the damaged caused.

No doubt playing in the minds of Americans was the recent (1 April - 22 June 1945) Battle of Okinawa[5]. In this battle, over 150,000 – 260,000 military and civilian personnel were killed on both sides[6]. These numbers are larger than the number of deaths at Hiroshima and Nagasaki combined. Absent use of atomic weapons, the Allies would have to invade the Japanese homeland. That operation, called Operation Downfall, was already under consideration and the number of American deaths were projected to be between 500,000 and one million[7], and that the operation would extend the war at least into February 1947.

It was expected that Emperor Hirohito would surrender following the use of atomic weapons, thus ending the war. If he did not, or if atomic weapons were not used, then the Allied invasion would go forward.

The value gained from the use of atomic weapons was thus the end of the War in the Pacific and the avoidance of what would surely be a costly land invasion. It is reasonable to say that the values gained exceeded the loss of life and damage that the atomic weapons caused.

Conclusion

The bombings of Hiroshima and Nagasaki were evaluated according to the Principle of Discrimination and the Principle of Proportionality. It is found that while non-combatants were indeed killed, the targets were military in nature. Also, the number of deaths caused by the bombings were less than the number of projected fatalities that would result from a ground invasion of Japan. Thus, the use of atomic weapons to end WWII passes the two jus in bello criteria.

Mushroom Clouds over Hiroshima (left) and Nagasaki (right). Photos by George R. Caron and Charles Levy

Footnotes

1. Clayton Chung, Japan 1945
2. Helen Frowe, The Ethics of War and Peace
3. Paul Ham, The Target Committee
4. Ibid.
5. Joseph Alexander, The Final Campaign
6. George Feifer, The Battle of Okinawa
7. D. M. Giangreco, Hell to Pay

Bibliography

Alexander, J. The Final Campaign: Marines in the Victory on Okinawa. U.S. Marine Corps History Division, 1996.

Chung, C. Japan 1945: From Operation Downfall to Hiroshima and Nagasaki. Osprey Publishing, 2008.

Feifer, G. The Battle of Okinawa: The Blood and the Bomb. Lyons Press, 2001.

Frowe. H. The Ethics of War and Peace: An Introduction. Routledge; 3rd edition, August 25, 2022.

Giangreco, D. Hell to Pay: Operation DOWNFALL and the Invasion of Japan, 1945–1947. Naval Institute Press, 2017.

Ham, P. The Target Committee. Hampress Ltd., 2018.

War of 1812: A Jus ad Bellum Analysis

Introduction

In this paper the War of 1812 is examined through the lens of the jus ad bellum criteria. We begin with the historical context and major issues that lead to the war. The criteria that form the jus ad bellum – just cause, reasonable chance of success, legitimate authority and public declaration, right intention, and last resort - are evaluated using relevant historical information, and it is found that the War of 1812 satisfies those criteria.

Particular attention is paid to the diplomatic and economic means employed by the Americans in order address one of the modern criticisms of the war: that it was not a war of last resort.

Finally, the outcomes of the war are listed. While at first glance it seems counterintuitive to consider the outcomes while performing a jus ad bellum analysis, it is necessary due to a certain ambiguity in the Just War Tradition.

Historical Context

Prior to the start of the War of 1812, Great Britain and France were engaged in the Napoleonic Wars. The United States was neutral in this conflict and conducted free trade with both belligerents. As a result, both the British and French interfered with American shipping, but what earned Britain the special ire of the United States was the fact that they impressed American sailors (from both merchant and military vessels) into British service. Further, the British were inciting revolt in certain American Indian tribes against the United States.

The issues that lead the United States to declare war on Britain were as follows:

• Impressment of American sailors by the Royal Navy
• Stopping, searching, and seizing the cargos of American ships
• Trade restrictions on our economic activities with France
• Disregard for American neutrality during the Napoleonic wars
• British support for American Indians who acted against the United States

Great Britain, meanwhile, sought to limit American expansion, specifically to prevent the annexation of Canada, to nullify the recently completed Louisiana Purchase, and to use Native Americans to create a barrier state/client state.

Application of Jus ad Bellum Criteria

When applying Just War Theory to any conflict, it is necessary to specify the time at which the evaluation is performed. Jus ad bellum criteria are used to determine whether entry into a war is just, but the evaluation of the criteria can be performed at any time, before the start of a particular war, or during that war, or after the end of that war, and it may give different results when they were applied.

To make this more complicated, evaluation of a war changes in the years following its conclusion. There are several reasons for this: first, the outcome of the war is known; second, additional information (such as government documents or tell-all biographies) becomes available; third, tempers which once ran hot have cooled, and once vivid memory has faded; fourth, veterans and other participants pass away; fifth, the general population’s level of knowledge and overall political philosophy will change; sixth, leaders may find certain aspects of a war “inconvenient” and so attempt to revise history.

McMahon¹ makes a similar point (that jus ad bellum and jus in bello can get switched around temporally) when he states that proportionality should be included in jus ad bellum, under the just cause criterion, as proportionality should be debated prior to the initiation of conflict. This leads to yet another ambiguity – proportional response by whom? The United States at the start of the war was not a significant military force in comparison to Great Britain so a non-proportional response to anything would be unlikely. Would Britain’s responses (such as the burning of Washington) be proportional, and should that be considered in our calculation of just cause?

With the War of 1812, there were no hidden documents and no scandalous memoirs. There were alternative motives (the desire to annex Canada in particular), but those were not hidden motives. The following analysis is an application of jus as bellum criteria using information prior to the start of the war.

Just Cause

Augustine listed three just causes for war: defending innocents against attack, recapturing things taken, and punishing those who have done wrong. Britain had an ongoing habit of attacking our merchant and military vessels, of seizing cargo, and of forcing American sailors to join the Royal Navy. These would clearly count as just causes according to all three of Augustine’s just causes.

Right Intention

America’s intention for declaring war against the British was to redress the injuries described in the previous paragraph. There is no evidence that the intention was to militarily eliminate the United Kingdom, so it can be taken that the goal was re-establish peace once the issues that prompted the war were addressed. This peace would be preferable to that which prevailed prior to the start of the war as impressment of sailors and harassment of American shipping would end.

There were ambitions among some of the politicians strongly in favor of war, the so-called “War Hawks,” that we should annex Canada. These ambitions were not part of the official reasons for going to war, and our defeat of the Battle of Queenston Heights put an end to any such ambition.

Last Resort

Roger Peace describes² the war as a “war of choice.” He notes that “all of the problems cited by Madison in justifying the war were long running concerns that had risen and fallen in importance over the previous two decades.” Further, Peace notes that “[T]he British exerted no sudden demands on the U.S. in 1812”³ and that “Great Britain did not attack or threaten to attack the United States in 1812.”⁴

His analysis fails for several reasons: there was considerable effort by the United States to use economic and diplomatic means to halt the grievances committed by Great Britain, as detailed below. Economic sanctions take time to be effective, and the United States gave Britain that time. Impressment of American sailors did occur in 1812, and would no doubt be ongoing.

There is a more fundamental problem with Peace’s analysis: The fact that Britain made no threats nor militarily attack (outside of the impressments) particularly in the year 1812 is irrelevant; there were all the previous and ongoing actions to be addressed.

Individuals and nations do not return to a state of tabula rasa from millisecond to millisecond as Peace seems to imply. There’s a continuity (with individuals this is called “character” and with nations it is called “policy”) that simply cannot be ignored. To phrase this another way: suppose Britain did militarily attack (outside of the impressments) at 11:59 PM GMT on 31 Dec 1811 – the fact that the attack occurred in the previous year by one second doesn’t make it a non-issue in the current year.

To avoid military confrontation with the British, American politicians attempted to find ways to economically sanction the British. Further, negotiations between them were attempted, but failed to resolve the issues. Despite all this, British impressment and interference in shipping continued. A history of these pre-war events is as follows⁵:

The Non-Importation Act of 1806 was the first attempt to sanction Great Britain over the issues that would lead to the War of 1812. The Act, passed 18 April 1806, was less than a full embargo of all British goods, and instead banned the import of specific items such as woolen clothes above a certain value, silver, paper, playing cards, beer, etc. The Act did permit the import of iron, coal, and steel which were considered too vital our economy. The Act proved to be unworkable, as other countries were found carrying banned goods on their ships. The Act was replaced by a general embargo, the Embargo Act of 1807.

In 1806 President Jefferson tasked James Monroe and William Pinkney to negotiate a treaty with Great Britain to end the impressment of American sailors and the harassment of American ships. The final version of the treaty, the Monroe-Pinkney Treaty of December 1806, did not end the practice of impressment, and so Jefferson refused to forward it to Congress for ratification.

Britain’s willingness to continue harassing American sailors and ships was demonstrated by the so-called Chesapeake-Leopard Affair (June 1807). In this, three sailors from the HMS Melampus jumped ship and joined the crew of the USS Chesapeake. The British Council asked that they be returned, but an investigation by the Secretary of the Navy revealed that the three sailors in question were all American citizens who were previously impressed into British service, so cannot be considered deserters, and thus were not returned.

In response, the British Admiralty issued an order to the captains of all British ships along the American coast requiring them to board the USS Chesapeake, should they meet her, and search for and detain British deserters.

On 22 June 1807, the HMS Leopard encountered the Chesapeake. The Chesapeake’s captain refused to allow the British to perform a search. The Leopard then fired upon the Chesapeake, killing three and injuring 18; the Americans surrendered and allowed their roster to be inspected. The British removed the three previously impressed sailors along with a fourth man.

M Dubourg, Boarding and Taking the American Ship Chesapeake, by the Officers and Crew of H.M. Ship Shannon, Commanded by Capt. Broke, June 1813 (c. 1813)

Prior to the Chesapeake-Leopard Affair, British impressment of American sailors was limited to merchant vessels. The Leopard targeted instead a military vessel and was thus an escalation.

As news of these events spread, the press whipped-up popular outrage and called for war⁶. Jefferson realized the gravity of the events, writing⁷ to James Bowdoin that “this country has never been in such a state of excitement since the battle of Lexington,” but he refused to convene Congress, stating in the same letter that “we propose to give Gr. Br. An opportunity of disavowal & reparation, and to leave the question of war, non-intercourse, or other measures, uncommitted to the legislature.”⁸ Jefferson thus allowed tempers to cool and for additional economic sanctions to be imposed.

In response to the Chesapeake-Leopard Affair and the failure of the Non-Importation Act of 1807, the Embargo Act of 1807 was passed. This wide-ranging Act banned exports to all foreign countries and further restricted British imports. Foreign ships already in American ports were permitted to depart with their cargo intact.

Great Britain was anticipating an American embargo, so it established trade with Spanish and Portuguese colonies in South America. The net result of the Embargo Act was to further British success in that region as it removed the United States as a competitor.

For Americans, the net result of this Act was an economic downturn in the New England area. It also undermined Jefferson’s traditional advocacy of free trade.

The Non-Intercourse Act of 1809 replaced the Embargo Act of 1807. One of the last acts of the Jefferson presidency, it lifted trade embargos on all countries except for Great Britain and France. The Act suffered from problems of enforceability just like the earlier Acts and proved to be ineffective against both Great Britain and France.

Macon’s Bill Number 2, which went into effect on 14 May 1810, was yet another attempt to stop both British and French interference in American shipping. The Bill operated by lifting embargoes against both countries for three months. If either the British or the French ceased disrupting American shipping, then America would embargo the other, unless that other country also agreed to cease interference. President Monroe was an opponent of the Bill, believing that Napoleon would exploit it to force Britain and the United States into war, but he did sign it into law. Napoleon did indeed manipulate the situation as Monroe thought he would.

In the six years prior to the start of the War of 1812 we see the United States attempting negotiations and imposing economic sanctions directly in response to most of the issues for which the war was initiated. While these non-violent attempts were made, Britain continued to harass American ships and sailors. Other sanctions, such as blockading British ports, were outside the abilities of the US Navy at that time. The War of 1812 can thus be considered a war of last resort.

It is worth noting that attempts at economic sanctions against Great Britain continued even after the War of 1812 started.

Legitimate Authority

In a message sent to Congress on 1 June 1812, then-president James Madison detailed grievances against the United Kingdom. He did not explicitly call for a declaration of war. The House and Senate, in closed debates, deliberated the proper course of action, eventually voting in favor of a declaration of war.

The vote was far from unanimous: the main opponents were members of the Federalist Party. They favored strong economic ties with Great Britain, and being based in New England, they were hurt by Jefferson’s various embargos. As Britain and Canada were New England’s primary trading partners, the war would be sure to do further damage to that region’s economy.

The Constitution places the ability to declare war on the shoulders of Congress, and Congress did exactly that by passing “An Act Declaring War between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories” on 18 June 1812, which was signed by Madison.

Reasonable Chance of Success

The JWT principle requiring the reasonable chance of success can be thought of as a prohibition against “wars of bravado” or “hopeless cause wars,” meaning wars that were initiated solely on issues of national pride or honor, or for the signaling of righteousness, etc. Politicians of this era were well-acquainted with this principle. For example, Jefferson, while he was Vice President under John Adams, realized that the fledgling US Navy was insufficient to contend with the Barbary pirates, and so agreed to pay them tribute even though he was opposed to doing so. This changed by 1801, and the Tripoli War (First Barbary War) was undertaken only following the naval buildup that occurred during the Quasi-War of 1798-1800.

Despite this increase in the US Navy’s size, the Royal Navy was still the superior force. However, the bulk of Britain’s land and naval forces were engaged in the Napoleonic Wars.

Following his defeat in Russia and the loss of Paris, Napoleon was forced to abdicate on 12 April 1814 and go into exile in Elba⁹. Some British forces were then transferred to fight the Americans¹⁰. The United States’ odds of victory decreased because of the arrival of additional British forces, but the end of the Napoleonic Wars could not be predicted prior to the start of the War of 1812.

It must be remembered that the British weren’t our only enemies in the War of 1812: there were British allies amongst the Native Americans, particularly the Iroquois and Tecumseh’s Confederacy. The militias of the various states were well-versed in irregular warfare and were qualified to fight them.

Thus, even before the end of the Napoleonic Wars, an American victory was not a foregone conclusion. Absent the additional British forces made available by the cessation of conflict in Europe, an American defeat was not guaranteed, either.

Outcomes of the War

Some have criticized the War of 1812 because under the Treaty of Ghent, the territory claimed by both sides remained unchanged¹¹. This misses the point of the war: the War of 1812 was not fought over land. America may have wanted to annex Canada, and Great Britain may have wanted to nullify the Louisiana Purchase, but those were not among the issues for which we entered the war. Instead, the issues were the rights of sailors and of shipping and the use of American Indians by the British to interfere with our internal affairs.

Another criticism is that the War had no winners¹². This is not correct either – the United States was certainly the winner¹³. The British impressment of American sailors stopped, as did the habit of stopping, searching, and seizing American vessels. There was also a “moral victory” in what could be called the Second American Revolution¹⁴. We entered the so-called “Era of Good Feelings” - particularly after our victory in the Battle of New Orleans. The US Navy grew to the point that we were able to use “gunboat diplomacy” to quickly end the Second Barbary War. The war also created a new set of post-Revolutionary War heroes, including Andrew Jackson, William Eaton, Presley O’Bannon, Oliver Hazard Perry, and so on.

The war also had a clear loser: the Indians. Tecumseh’s Confederacy dissolved after the Battle of the Thames, and the Creek Nation ceded territory (what is now Alabama and southern Georgia) after losing the Battle of Horseshoe Bend (27 March 1814).

Conclusion

The War of 1812 clearly satisfies the jus ad bellum criteria, with the possible exception of the guarantee of success doctrine.

It was declared by the proper authority using the correct legislative process.

It was fought to defend the rights of American sailors, of maritime commerce, and consequently American sovereignty. These goals, these just causes, are usually summed up in the phrase “freedom of the seas.”

Despite Roger Peace’s protestations¹⁵, the United States did attempt diplomatic and economic solutions, and while these attempts were ongoing, British impressment not only continued against merchant vessels, but expanded to military vessels. The war was certainly one of last resort.

America’s success was not a forgone conclusion. At the start of the War of 1812, Britain was involved in the Napoleonic Wars, which consumed a great amount of their military capabilities. So, while Britain was a formidable enemy it was not an invincible one as the outcome of the war demonstrated. America’s second enemy in the war, the American Indian tribes who allied themselves with Britain, were no match for our militia forces.

Finally, we had the right intentions: the goal was to reaffirm the rights of sailors, to defend shipping, and halt British influence among the American Indians. Further, the resulting peace was a better one than existed prior to the war. The extent we were successful in both was described thusly by Theodore Roosevelt:

“We were contending for "Free Trade and Sailors' Rights": by the former expression, freedom to trade wherever we chose without hindrance save from the power with whom we were trading; and by the latter, that a man who happened to be on the sea should have the same protection accorded to a man who remained on land. Nominally, neither of these questions was settled by, or even alluded to, in the treaty of peace; but the immense increase of reputation that the navy acquired during the war practically decided both points in our favor. Our sailors had gained too great a name for any one to molest them with impunity again.”¹⁶

 

Footnotes

1. McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21.
2. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
3. Ibid.
4. Ibid.
5. The following is from Allan R. Millett, Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).
6. Edwin M. Gaines. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209
7. Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926
8. Ibid.
9. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
10. Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012.
11. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
12. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
13. Willard Sterne Randall. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.
14. Walter R. Borneman. 1812: The War that Forged a Nation. Harper Perennial, 2005.
15. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
16. Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882.

Bibliography

Bell, D. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014

Borneman, W. 1812: The War that Forged a Nation. Harper Perennial, 2005.

Gaines, E. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209

Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012. 

Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926

McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21. 

Millett, A. R., Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).  

Peace, Roger. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812

Randall, W. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.

Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882. https://ia902600.us.archive.org/32/items/navalwarof1812or00roosuoft/navalwarof1812or00roosuoft.pdf

Just War Analysis of the 2003 American Invasion of Iraq

Introduction

The purpose of this paper is to evaluate the 2003 American Invasion of Iraq according to jus ad bellum criteria – were we in the right to start that war? We begin with the historical context including the faulty information about Iraq’s weapons of mass destruction. That history is then used to determine whether the invasion passes the jus ad bellum standards of Just War Theory.

Historical Background¹

Official build-up for the invasion began with the “Authorization for Use of Military Force Against Iraq Resolution of 2002”, also known as the “Iraq Resolution”, which was passed in October 2002 by the U.S. Senate and House of Representatives. It authorized the use of American forces against Iraq in what would be called “Operation Iraqi Freedom.” The factors used to justify the war included:

1. Iraq’s development and possession of weapons of mass destruction (WMDs) as well as operation of mobile weapons labs
2. Their possession of unmanned aerial vehicles to deliver said WMDs
3. Their support for terrorism, including harboring members of al-Qaeda and paying bounties to the families of suicide bombers
4. Saddam Hussein’s repression of the Iraqi people and the Kurds

This was followed by the passage of UN Security Council Resolution 1441 of November 2002 which demanded that Iraq allow weapons inspectors back into the country. Iraq appeared to comply with the resolution.

In early 2003, President George Bush and British PM Tony Blair stated that Iraq was hindering the UN weapons inspectors. Leaders of Germany and France sought extended inspections and wanted to give Iraq more time to comply with the inspectors.

On 5 February 2003 Secretary of State Colin Powell gave a presentation to the UN Security Council claiming that Iraq had maintained its stockpile of WMDs, that it was hiding evidence of its WMDs from UN weapons inspectors, that it silenced its weapons scientists, and that it continued to harbor al-Qaeda terrorists. These were the reasons used to start the war.

On 17 March, President Bush gave Saddam an ultimatum: leave Iraq in 48 hours. He didn’t.

On 20 March 2003 kinetic operations began with precision-guided missile attacks against the suspected location of Saddam Hussain, followed by bombings of government and military buildings. Major operations were completed six weeks later, and the occasion was marked by President Bush’s “Mission Accomplished” speech on 1 May 2003.

On 30 September 2004 the Iraq Survey Group, a multinational group organized by the CIA and the Pentagon, released a report (the Duelfer Report) stating that Iraq had no significant amount of chemical WMDs³. It was believed that the WMDs did exist – and were used against the Kurds – but the weapons were sent to Syria. The idea that Iraq was a state sponsor of terrorism remains unclear.

The justification for the war changed at this point to the plight of the Iraqi and Kurdish people under Saddam, and the goal became removing him and the Arab Socialist Ba’ath Party from power.

The war did not end by this time, for once we defeated the Ba’ath Party, the insurgency started. Politics abhors a vacuum, and we began fighting a new enemy.

Just Cause

St. Augustine lists² three jus ad bellum conditions: defending against attack, recapturing things taken, and punishing a nation that has done wrong. According to (faulty) intelligence, Iraq’s people and its neighbors were in immediate danger from WMDs, and according to (accurate) intelligence, Saddam’s regime was actively violating the individual rights of its citizens. Thus, our invasion of was justified because we were defending others against imminent danger and punishing Iraq for doing wrong by the Kurds and other Iraqi people.

Proportionality

Proportionality is a slippery concept in action. The broad idea is that when an enemy destroys one of our ships, we destroy one of theirs, when the enemy downs one of our airplanes, we do the same to one of his airplanes, and so on. The enemy is supposed to remain stationary while we pursue a proportionate response. Nice theory, but in practice things don’t work that way.

The reality is more like this: the enemy destroys one of our vessels, and in our act of responding proportionally, the enemy sends fighters to stop our response, we then use surface-to-air missiles, and so on. Each combatant is starring in his own “Saving Private Ryan” movie, and once the situation escalates it becomes extremely difficult to stop.

An alternative to proportionality is this: does our response not only stop the immediate harm but also removes the capability of performing similar harm in the future? The American forces disabled Iraq’s air defense system, which allowed the ground invasion to go forward unencumbered. We targeted only government and military installations, and the government and military were the ones harming people. We not only stopped them doing harm and we also prevented them from repeating this harm in the future. This theory has plenty of edge cases, and it may not be possible to justify this approach within Just War Theory.

Reasonable Chance of Success

The 2003 invasion of Iraq was a well-designed and well-implemented plan that involved combined use of air and ground forces. Our Air Force, Marines, and Army were far superior to the corresponding Iraqi forces, so we had a very reasonable chance of success.

Legitimate Authority and Public Declaration

Congress has the power to declare war, and while the Iraq Resolution was approved by Congress, it did not declare war. The Resolution only authorized President Bush to use military force against Iraq. However, the Iraq Resolution can be seen as a public declaration announcing America’s intention to initiate military action against that country.

Right Intentions

If Iraq possessed WMDs and weapons labs, and if Iraq possessed the capability to deliver the WMDs, and if Saddam had plans of using these weapons on the Iraqis or other people, then we had the right intentions for invading Iraq with the goal of removing those weapons and delivery capabilities.

As it goes, Iraq didn’t have WMDs, but the treatment of the Iraqis and Kurds under Saddam and the Ba’ath Party was still an issue. Our intentions to drive Saddam from power and to De-Ba’athify the government were good intentions, and our actions were in support of those intentions.

Does this mean America must topple oppressive governments all over the world? It does not, for doing so does not further any pressing national interest. National interest does not play a direct role in Just War Theory, however.

Last Resort

At the time of the 2003 invasion, economic sanctions against Iraq were still in place. These sanctions were in response to Iraq’s 1990 invasion of Kuwait. Further economic pressure could not be applied.

Multiple diplomatic solutions (the Iraq Resolution, Resolution 1441, Colin Powell’s presentation to the UN Security Council, and finally the 48 hour demand of Saddam to leave the country) were attempted but each proved unsuccessful. All non-violent options were exhausted, and so the war was indeed one of last resort.

Conclusion

Based on all the usual criteria of jus ad bellum - principles of just cause, proportionality, reasonable chance of success, legitimate authority and public declaration, right intention, and last resort – it can be concluded that we were justified in this military action according to Just War Tradition. This conclusion holds regardless of the existence of WMDs.

From a “realist war theory” perspective, the invasion cannot be justified. If anything, the invasion violates the realpolitik “Pottery Barn rule” – you break it, you buy it. By eliminating Saddam Hussein’s regime, we metaphorically broke Iraq, dysfunctional that it was, and we ended up buying it over the next 8 years.

References

1. Draper, R. (2020). To Start a War: How the Bush Administration Took America into Iraq. Penguin Books.

2. Holmes, A. F. (2005). War and Christian Ethics. Baker Academic.

3. Ricks, T. E. (2006). Fiasco: The American Military Adventure in Iraq. Penguin Press.