Ultimate Justice: Is forcible regime change a legitimate war aim?

The President is authorized to use the Armed Forces of the United States as he determines necessary and appropriate to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
— Public Law No. 107-243 enacted October 16, 2002

Would U.S. military action against Iraq meet the requirements of the just-war tradition, the standard by which most Americans have long judged the legitimacy and morality of military action?

EDITOR’S NOTE: This is the last of a five-part analysis of the legal and moral aspects of the confrontation with Iraq. (Part IV can be read here, III here, II here, and I here.)

The remaining elements of the just-war tradition are as follows.

1. Competent Authority

The just-war tradition regards authority to wage war as a sovereign prerogative and as a matter of limitation and legitimacy. Its twofold aim is to limit authorized resort to force by acknowledging the state's legitimate monopoly on the use of force (as against illegitimate armed groups like al Qaeda or the IRA) and to legitimate proper recourse to force as the appropriate expression of a political community in the face of actual or imminent harm.

The tradition further regards the legitimate use of force as a properly sovereign duty since the state alone bears direct and ultimate responsibility for defending its own vital interests. An essential attribute of sovereignty is the absence of any higher authority to which an aggrieved party can appeal and seek justice as a matter of certainty. In fact, the Catholic bishops acknowledge this basic fact in two major statements after the September 11 attacks, each citing "a moral right and a grave duty to defend the common good against such attacks" on the part of the U.S.

The U.N. by contrast is a relatively recent innovation that bears at best indirect responsibility for the defense of any given state — and that has failed in practice to fulfill its assigned role of providing collective security. The U.N., moreover, lacks the essential elements of sovereignty within the meaning of the just-war tradition: capacity to assert and defend its own interests with its own resources (by its own armed forces, if necessary) and — above all — the indispensable legitimacy possessed only by its democratically accountable member states.

What are the requirements of competent authority in this case? The Catholic bishops, to cite one example, "require compliance with U.S. constitutional imperatives, broad consensus within our nation, and some form of international sanction, preferably by the U.N. Security Council." The first two requirements are amply satisfied by passage of the October 11 joint resolution — approved by overwhelming margins in the House of Representatives (296-133) and the Senate (77-23) — following an extensive (and continuing) national debate.

Requiring "some form of international sanction," however, is both problematic and unnecessary for just-war purposes. Just cause either exists or doesn't; the justice of a particular casus belli in no way depends on how many other states, prompted by calculations of their own self-interest, happen to endorse it. This is the moral equivalent of the legality-in-numbers fallacy discussed in the second article. Nor do states require approval or permission from any "higher authority" to defend vital interests for which they bear ultimate responsibility. Competent authority requires following proper procedures appropriate to the gravity of the situation and — to paraphrase the Declaration of Independence — submitting the relevant facts to a candid world out of respect for the opinion of humanity. And each case must be judged on its own merits unaffected by speculating how other states — acting on calculations of self-interest — may or may not use such precedents as pretexts.

Elevating explicit Security Council approval to the level of an explicit moral obligation is even more dubious. That is the approach recently taken by the U.K. Anglican bishops, despite lacking any particular competence to address international law issues (as opposed to applied ethical issues, where their actual comparative advantage theoretically lies). As a moral issue, three of the Council's permanent members are hopelessly compromised by their unprincipled defense of Iraq's morally indefensible position (illicit WMD development) for morally indefensible reasons (oil and money). Consider, for example, this astonishing October 9 admission by Russian President Vladimir Putin's official spokesman: "The devil will be in the detail of these [U.N.] resolutions but our position is essentially pragmatic. What is interesting for us is our economic and financial interests."

2. Right Intention

This principle applies more to the motivations of states than the attitudes of individuals, except those in authority with the power to shape the views and conduct of others for better or worse.

It has both negative and positive aspects. It acknowledges that states, like individuals, typically act for more than one reason. The negative aspects of this principle forbid such improper motives as the desire to bully or dominate, seize what rightfully belongs to others, inflict unnecessary harm, or indulge what Augustine condemned as "implacable animosity." Its positive aspect seeks to reinforce overall aims well stated by President Bush: "We seek a just and peaceful world beyond the war on terror."

Is forcible regime change a legitimate war aim if all other measures fail to eliminate Iraq's illegal unconventional arsenal? All available evidence suggests that the regime and its WMD arsenal are inseparable. And all means up to and including limited military force have been tried and found wanting. Inspections in particular are simply a (failed) means to an agreed end (disarmament). As Charles Duelfer, an UNSCOM veteran, puts it: "weapons inspectors are not the answer to the real problem, which is the regime."

In addition to its primary war aim — elimination of an intolerable threat — secondary U.S. objectives include: installing a more decent and democratic regime; removing a longstanding state sponsor of terrorism; altering an unacceptably dangerous status quo in the Middle East; and enforcing basic international norms in the face of the UN's failure. All are legitimate objectives, though none by itself might necessarily qualify as a sufficient reason to use force. All, however, are consistent with the primary objective: elimination of a "grave and gathering danger" as the essential first step toward a more just and well-ordered peace.

Consider for a moment the principal secondary U.S war aim — ending Saddam's ugly reign — in light of recent humanitarian interventions, especially Kosovo. By any measure — the quantity of bloodletting, the degree of repression, or the threat to regional and international order as a whole — Saddam's Iraq is a far worse case than Milosevic's Serbia was. Does support for intervention in one case but not the other mean that morally permissible intervention depends on the absence of vital U.S. national interests?

3. Four Prudential Concerns

The categories of just cause, competent authority and right intention are the primary just-war considerations, both historically and logically. These were the three basic principles first formulated by Aquinas; they remain the basic and necessary ones from which the other four follow. In recent years efforts have been made to manufacture a "presumption against force," but a more faithful and accurate reading of the tradition yields a presumption against injustice that, in appropriate circumstances, as here, trumps avoidance of war at all costs.

Likelihood of Success. This principle has two main aspects, military and political. First, eliminating the Iraqi threat — its banned weapons and, if necessary, the regime itself — appears well within the capacity of U.S. military power. Since the Gulf War, Iraq's conventional forces have deteriorated sharply, with the competence, morale, and ultimate loyalty of its regular armed forces in serious doubt. The U.S. has already begun efforts to induce these forces to stand aside while concentrating on more limited and appropriate targets: the six-division Republican Guard, the Special Republican Guard and the security services (perhaps 125,000 men altogether), the mainstay of Saddam's brutal regime and practitioners of genocide in Iraq's Kurdish north and Shia south.

Second, the U.S. seeks to establish a more decent and democratic successor state that no longer threatens its own people and its neighbors. Much discussion of the prospects have been unduly abstract, unlike the more pertinent reflections of observers like Kanan Makiya, Iraq's Solzhenitsyn and author of Republic of Fear, who strongly supports U.S. military action and is helping draft a constitution for a decentralized, federal Iraq.

Overall Proportionality. Calculating the expected overall balance of good versus evil is in principle similar to familiar exercises in weighing costs and benefits, except for higher stakes (literally life-and-death consequences) and more-intangible factors (especially values, duties and rights).

Three issues are especially relevant. First, the stated war aim of regime change makes possible a far-greater economy of force in its properly narrow focus on the Iraqi leadership and its supporting structures. Both ends (regime change) and means (decapitation by precisely applied force) greatly lessen potential risks to Iraqi society as a whole and its essential civilian infrastructure.

U.S. armed forces demonstrated admirable respect for just-war principles as a matter of policy during the Afghan campaign, where they avoided striking legally permissible but morally problematic targets, e.g., military forces and materiel deliberately emplaced in civilian areas by the Taliban in direct contravention of the Geneva Conventions. Indeed, anyone at all familiar with the ethos of the U.S. armed forces well knows that, as a practical matter, the operative restraints on their use of force are overwhelmingly moral rather than legal. That is why the Catholic bishops' concern that "the use of massive military force to remove the current government of Iraq could have incalculable consequences" for Iraqi civilians unduly underestimates the acknowledged "improved capability and serious efforts to avoid directly targeting civilians in war."

Second, there is no greater likelihood that military action will precipitate actual WMD use than the existing probability that Saddam will use these weapons at a time and place of his own choosing. Aggressive selective deterrence — making clear than every Iraqi in any way responsible for WMD use will face war crimes charges — has already begun. And it is more likely than not that many — if not most — Iraqi will choose self-preservation over participation in Saddam's personal Goetterdaemerung (just as most Germans refused to carry out Hitler's scorched-earth directives in 1945). In addition, successful decapitation lessens the possibility of WMD use, given Iraq's highly centralized, top-down command structure. At the very least, taking away Saddam's initiative and confining the use of these weapons to the battlefield is a properly moral concern.

Third, elected officials are almost always better placed to assess the geopolitical consequences of military action than religious leaders, whose proper role is to clarify the relevant moral issues. The Catholic bishops, for instance, warn that "[w]ar against Iraq could have unpredictable consequences not only for Iraq but for peace and stability elsewhere in the Middle East," possibly leading to "wider conflict and instability." This is not a theological judgment, but rather a prudential one.

In theological terms, political and religious leaders are distinguished by their distinct roles and charisms, the one being essential practical, the other prophetic. And it is after all the legitimate political authorities that bear ultimate responsibility for their decisions. In their subsequent November 13 statement reiterating their earlier concerns, the bishops forthrightly acknowledge that "[w]e offer not definitive conclusions, but rather our serious concerns and questions in the hope of helping all of us to reach sound moral judgments." This becoming modesty underscores the risks religious leaders run in treating speculations about strategic consequences as matters of fact, especially in the absence of the full range of information — including secret intelligence — available to policymakers. And it properly acknowledges the distinct roles of political and religious leaders.

Last Resort. This principle rightly requires exhaustion of all reasonable efforts short of force. It does not counsel avoidance of war at all costs; nor does it counsel delay that risks compounding a grave and imminent threat. Given the record of the past decade — and the plain failure of all efforts in good faith to reach a peaceful solution — this is no longer a moral issue, but rather a tactical one.

Prim exhortations by religious leaders and others to persist with manifestly failed policies in the face of mounting dangers amounts to an exercise in willing ends but not means — especially given their general unwillingness to specify precisely when force becomes necessary and legitimate.

Peace as the Ultimate Aim. This principle restates the essence of right intention: that a just, well-ordered peace is the ultimate aim of any morally legitimate use of force. On the one hand, it is meant to reinforce observance of proper moral limits while war is being conducted, since transgressions necessarily make peace harder to attain. On the other, it is also meant to discourage adoption of improper war aims (e.g., no "Carthaginian peace") that would prolong hostilities and make peace harder to achieve. For reasons set forth above, regime change is a necessary and legitimate aim.

At the end of the day, Iraq remains a singular case. Concerns that U.S. military action against Iraq will create an unlimited hunting license misread American character and American history. Considering the practical difficulty President Bush faces in assembling domestic (and international) support for military action against Iraq, the single worst outlaw state, pre-emption will remain rare. As John Quincy Adams put it, the U.S. "does not go abroad in search of monsters to destroy" — but has been perfectly willing to dispatch monsters spotted heading in this direction.

Finally, opponents of U.S. military action against Iraq on moral grounds must answer these questions: If not the U.S., who will defend moral norms and international order? If not against Iraq, where? If not now, when?