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The Case of Iraq and the Just War Tradition

Kenneth R. Himes, O.F.M.

The just war tradition is not a fossil but a living tradition. Like any tradition it has roots in the past, but because it is also living it is a past that must be used to engage and, hopefully, enlighten our present. Engagement with the present is the pole of tradition that the American Jesuit John Courtney Murray called “the growing end.” Development is necessary for a tradition to remain living.

There have been two classic categories of principles in just war thinking. Jus ad bellum principles concern the moral justification of war while those of the jus in bello category regulate moral conduct in war. Supporters of a war with Iraq are making their case for a just war, the jus ad bellum, in a new way. One formulation of opposition to the war also offers something new, a style of argument suggesting the need for a third category of just war principles, a jus post bellum, to govern right action after war.

The Case for War

After personal experience of the devastation wrought by the two great wars, Pius XII declared that in the future the only legitimate basis for war was self-defense. Catholic commentators were not alone in taking seriously this reduction in the causes of just war. A general consensus evolved that the principle of just cause for war ought to be viewed narrowly. Subsequent discussions ensued, however, over what counts as aggression and whether aggression against one’s allies or an innocent third party also permitted taking up arms.

During the decades that followed World War II proponents of revolution made their case for legitimate wars of liberation or, in some cases, secession. As was to be expected, these claims were viewed in the context of the superpower conflict between the United States and the Soviet Union. The quarrel over legitimating revolution too often was skewed by the larger struggle between East and West. Yet Paul VI and other members of the Catholic hierarchy took the position that not all revolutions failed the test of just cause.

Then in the decade of the 1990s a considerable amount of literature appeared in response to atrocities in Rwanda, Bosnia, Kampuchea and other nations. In the discussions of the moral responsibility that fell on the U.S. and other countries for stopping the horrors a new argument for the legitimate use of armed force was made, war as humanitarian intervention. The ethical debate over just cause in this case blurred the usual lines of liberal and conservative in American politics. The majority of commentators and citizens, including John Paul II, endorse humanitarian intervention in the case of genocide, though abuses of lesser magnitude continue to create disagreement over humanitarian concerns satisfying the principle of just cause.

Today in the debate over Iraq we are hearing a new case being made for a just cause, what President Bush has called “regime change.” The columnist George Will characterizes the situation this way: “Without guidance from any precedence in this republic’s history, the administration is improvising diplomatic and constitutional etiquette for launching preventive war without what has normally been recognized as a casus belli.” Will believes a case can be made for the moral legitimacy of war with Iraq but acknowledges it is a new type of argument. “The uniquely virulent constellation of four factors – Hussein’s character, the terrorists’ proclamation of war against the United States, the various intersections of Iraqi policy with the culture and apparatus of terrorism, and the technologies of mass destruction developed in the last 57 years – constitute a new kind of casus belli.”

Actually Will overstates the situation when he claims no precedence in American history. Certainly we have used covert means during the 1950s in Guatemala and Iran to change regimes. Woodrow Wilsom sent troops into Mexico in an unsuccessful attempt at changing government. More recently, tens of thousands of troops were sent into Panama to remove Manuel Noriega and, again, the military was used to change the leadership of Haiti. So regime change is not a completely novel policy for the United States. What is new is the rationale. In the past the explanation for United States intervention was the establishment of regional stability or the defense of human rights, or, rarely admitted, protection of economic interests. Now the “casus belli” is that unless we act a country will obtain weapons of mass destruction that will embolden a tyrant. The cause for war is a future danger.

In his August speech before the convention of the Veterans of Foreign Wars, Vice-President Richard Cheney presented his view of why regime change was necessary and war was justified. First, he argued that the restoration of United Nations’ arms inspections on Iraqi soil was not an acceptable alternative. After recounting several past incidents of Saddam Hussein’s non-compliance and the failure of inspections to detect this, the Vice-President said, “Saddam has perfected the game of cheat and retreat, and is very skilled in the art of denial and deception. A return of inspectors would provide no assurance whatsoever of his compliance with U.N. resolutions.” Doubts about the effectiveness of arms inspections, however, are only part of the Bush administration’s case.

In his January 2002 State of the Union speech Mr. Bush spoke of an “axis of evil,” in the world and named North Korea, Iran and Iraq as constituting the axis. By just about all accounts, the North Koreans are far more advanced than Iraq in the development of both ballistic missiles and nuclear weapons. Iran is also seen to be farther along than Iraq in ballistic missiles and is likely to be at roughly the same stage as Iraq in development of a nuclear weapon. In addition, Iran is clearly linked to terrorism according to U.S. intelligence reports. Why, then, is the present crisis focused solely on Iraq? The argument about developing or possessing weapons of mass destruction is not sufficient to explain the U.S. position given the number of countries that presently have such weapons and those nations working on producing such weapons.

Returning to George Will’s “constellation of four factors,” the only one that is unique to Iraq is the character of Saddam Hussein. The other factors are present to even greater degrees in countries that we are not now threatening with war. It is the presence of Hussein at the head of Iraq that is the determining factor in the administration’s thinking. Mr. Cheney on the television program Meet the Press (9/8/02) confirmed this conclusion. “We’re concerned about Iran and about North Korea. But the thing that’s different about Iraq is its government and its regime and its past history.” In his speech before the United Nations the President stated, “history, facts and logic lead to one conclusion – Saddam Hussein’s regime is a gathering and grave danger.”

It is this description of the justifying cause for war that has caused the rift between the U.S. and most of its allies. In an interview with The New York Times (9/9/02) French President Jacques Chirac drew the distinction between the U.S. position and that of others on the U.N. Security Council: “The issue today is to know whether there are any weapons of mass destruction. And to know it, one should go to see. And to see it, the inspectors must be free, without any restrictions or conditions, to visit. . . . This is the objective. If this is fulfilled, then it’s over. The Security Council or the international community never wanted to change the regime in Iraq, because there are numerous countries where one wished to see another regime. But if we are going down that road, where are we going?”

Saddam Hussein has few supporters outside of Iraq and those who dissent from the Bush administration’s approach do so not because they think Hussein to be a decent and good leader. Rather the debate is over how to deal with an evil dictator. President Chirac and other allies advocate containment as a policy, a position that entails, but is not exhausted by, the revival of the United Nations mandate for free and uninhibited arms inspections within Iraq. If those inspections are rejected by Iraq yet again, then it is quite possible more allies may support the Bush policy. Others may continue to maintain that even with weapons of mass destruction Hussein can be deterred just as other nations possessing such weapons have been deterred. One argument of our allies, at present, is that no incentive exists for Hussein to comply with the U.N. Security Council resolutions, or to be deterred from future use of such weapons, if he is being told no matter what he does, the U.S. is going to attack and remove him from power. In his speech at the United Nations and in subsequent remarks, Mr. Bush has seemingly backed away from the position articulated by Mr. Cheney since the President called upon Hussein to demonstrate his desire to avoid war by complying with the resolutions.

In the minds of many leaders regime change is not a valid cause for war. Most Western allies, not to mention Arab leaders, advocate a policy of containment rather than removal of Hussein. The response up to now from President Bush and his supporters has been that a clear and present danger exists to which we must respond. But the vast majority of countries, including all nations in the region with the exception of Israel, see it otherwise. Since these are the nations most exposed to any future Iraqi plan for dominance their viewpoint cannot be dismissed. Given that Mr. Bush has called for regime change not only in Iraq but in the case of Yasir Arafat there is some concern that the U.S. government lacks the patience and tolerance to work with individual personalities it finds unsavory.

Mr. Chirac’s worry about making regime change a justification for war reflects a caution found in other governments about setting new precedents and violating existing rules of international conduct. Commenting on regime change in Iraq, he stated: “One can wish for it, naturally. But a few principles and a little order are needed to run the affairs of the world.” One of the principles that helps preserve a modicum of order in the world is not specifically targeting sitting leaders; another is the presumption against initiating hostilities.

In the past few months we have heard several different explanations of the casus belli: regime change is necessary given Hussein’s history, Iraq’s weapons are a threat to our allies, Iraq’s weapons are a direct threat to the United States, Iraq provides aid and comfort to terrorists, the integrity of the U.N. is at stake given Hussein’s open defiance of the Security Council. It is not always clear which of the reasons offered is the real reason that drives the U.S. leadership but some of the reasons are clearly less persuasive than others.

The Strategy of Pre-emption

Following almost immediately upon the President’s argument on behalf of a war to change regimes is the question of a pre-emptive strike. The U.S. call to initiate hostilities presumes that eventually Mr. Hussein will act aggressively and it is better to fight him now before his weaponry is fully developed rather than later.

Ordinarily, the mere fact of a nation’s participation in the arms race would not, in and of itself, be a provocation to war. Too many other nations are engaged in it and Iraq is hardly unique in its pursuit of dangerous weapons. But the Iraqi regime is under a U.N. mandate not to indulge in research and development of weapons of mass destruction. Flaunting the Security Council’s Resolution 687 leaves Iraq open to the charge that it is behaving in a deliberately provocative manner.

Although the recently articulated strategy of pre-emption is a new statement of American policy, it has been discussed among just war theorists. The case is made that there are instances when the threat of attack is so serious and immediate that it constitutes an act of aggression. The difficulty in making the case for pre-emption is in assessing the danger -- its nature and its nearness.

The nature of the danger is that a state of affairs will change in a way injurious to a nation. Of course, the existing international order always is of benefit to some and disadvantage to others. And the state of affairs is always in flux. To avoid wars for specious reasons the danger that is threatening must be significantly harmful. Regarding the nature of the Iraqi threat, the Vice-President in his VFW speech was clear about the stakes. “Armed with an arsenal of these weapons of terror, and seated atop ten percent of the world’s oil reserves, Saddam Hussein could then be expected to seek domination of the entire Middle East, take control of a great portion of the world’s energy supplies, directly threaten America’s friends throughout the region, and subject the United States or any other nation to nuclear blackmail.”

Turning to the topic of the nearness of the danger there must be a determination that not only does the threat entail a serious matter but it is an immanent one. Threats are always present in international politics. What are we to make of any particular one? Intelligence operations are meant to provide clues, if not outright proof, of another nation’s intentions. Yet, guesswork is part of the equation in most situations.

Again and again the present administration has stated that Saddam Hussein’s past actions bespeak his ambition for the future: he desires regional dominance in the Middle East. His track record, according to U.S. leaders, leaves no doubt as to what he will do once he acquires the necessary means. The case for pre-emption, then, is that a threat involves danger that is serious and the likelihood of occurrence is high in the future if not in the immediate situation.

Several historical illustrations have been used as a rationale for pre-emption. If the U.S. had known in advance of the impending attack on Pearl Harbor, it is argued that the U.S. rightly could have acted first to destroy Japanese planes before they took off on their missions. In the speech to the VFW, Mr. Cheney also stated, “If the United States could have pre-empted 9/11, we would have, no question.” Both these examples are easy to justify. If we had known in advance of the certainty of these attacks a pre-emptive blow would easily pass the test of legitimate self-defense in the face of aggression. Just war theory acknowledges that the aggressor is not always the one who actually fires the first shot.

Another case, closer to the situation we presently experience, was Israel’s pre-emptive strike against Egypt at the outset of the Six Day War in 1967. Controversy exists about the legitimacy of that attack because, although there was clear and serious danger, it was argued then and now that an Arab attack was not immediate and quite possibly avoidable. Still others maintain that the Israeli action was morally justifiable in the historical context of Egypt, Jordan and Syria’s activity near the Israeli border and the threats made by Arab leaders.

Perhaps the most commonly cited historical analogy to the present crisis is another example from the decade of the sixties, the Cuban missile crisis. The Russian missile site posed the risk that a nuclear attack might be launched upon the continental U.S. from just a short distance off our southern coast. It was clear that a missile site was being prepared but the danger was not immediate since no missiles were yet in place and more time was needed by the Russians and Cubans to make the missile site operational. Nonetheless, the Kennedy administration declared its willingness to invade Cuba to prevent the completion of the site and then established a naval blockade to stop Soviet ships from bringing missiles to Cuba. The potential harm to the United States was grave and the eventual occurrence of nuclear blackmail, if not actual war, on the part of the U.S.S.R. seemed probable.

There is a recognized argument within the just war tradition that a nation’s leaders can respond to an attack once they see it coming, but before it actually occurs. Thus, the idea of a pre-emptive attack being morally justified is not beyond the bounds of moral legitimacy. Nonetheless, it is unilateralism taken to an extreme. The example of the U.S. action will certainly be used as a precedent for others to cite in permitting future pre-emptive strikes. Consider the possibility of attacks by India on Pakistan or China on Taiwan. An international order where pre-emption becomes more commonplace is not a stable future.

If Hussein’s ambitions are as described and if his ambitions are not merely wishful thinking on his part but plans he will be capable of bringing about, then the administration’s case for a pre-emptive attack gains strength. Those “ifs” can be debated, however. First, of course, is the question of whether Hussein’s plans can be thwarted through effective U.N. sanctioned arms inspections. Despite Mr. Cheney’s dismissal of that possibility, the President acknowledged in his U.N. speech that this strategy might be implemented. By this Mr. Bush seemed to take into account the reservations expressed by many of America’s allies.

Even should he acquire weapons of mass destruction the question remains whether Hussein is the mad as well as malevolent leader described by the Bush administration. Or, is he, like the leaders of North Korea, more concerned with staying in power and, therefore, rational enough to accept a containment policy that mixes rewards and punishments for proper behavior. The answer to that question may also divide the various participants in the moral debate.

Jus Post Bellum?

Another intriguing consideration for just war theory is the need to adopt what Michael Schuck of Loyola University in Chicago once called the jus post bellum, a set of moral principles to govern the way we end a war.

One result of the debates over humanitarian intervention has been greater attention to the aftermath of war. The question of what was achieved by intervention is important, especially since the purpose was to enhance the well-being of people rather than punish or vanquish them. The alleged humanitarian cause of recent armed conflict has pushed a new set of issues into the forefront, issues which the just war tradition must take into account.

Professor Schuck first proposed his idea in the aftermath of the Gulf War (The Christian Century, 10/26/94). He suggested three principles as part of any jus post bellum. The principle of repentance requires a sense of humility and remorse by the victors for the suffering and death that was brought about even in a just struggle. An appropriate sense of mourning is needed when Christians kill even if the killing is judged legitimate. A principle of honorable surrender means that the terms of surrender imposed ought not demean the vanquished nor be punitive in intent. Finally, the principle of restoration completes the suggested jus post bellum. This requires, at a minimum, that the victor return to the fields of battle and remove the remaining instruments of war, e.g. land mines. A maximal reading of this principle proposes that the victorious side assist the losing nation(s) in repairing the basic infrastructure of the society.

If war with Iraq is to be fought for the express purpose of regime change, it is imperative that the post-war situation be factored into any ethical assessment of the American-led war. The very purpose of such a war will be to alter the internal situation of the Iraqi nation, so as to increase stability and the chances for peace in the region. But what kind of Iraq will emerge from the war? And what will be the obligation of the United States to its defeated enemy once the war is over? These questions lead me to propose a fourth principle for the category of the jus post bellum, namely that of establishing civil society.

Critics of humanitarian interventions have warned of the lack of an “exit strategy” from such conflicts. The complaint is that the U.S. will find itself in a situation where it becomes a vital participant in the task of what is somewhat derisively called “nation-building.” The fear is that American resources will become overtaxed and depleted if every fractious society expects U.S. intervention and ongoing presence to resolve its problems. Though this criticism is overdone, there are limits to what one nation can do for another.

Yet, in cases of humanitarian intervention or regime change, the principle of restoration is inadequate. The situation prior to the war is to be avoided not restored. That is why I suggest adding a fourth principle to the jus post bellum, that of establishing a civil society. My proposal encompasses the work of securing domestic peace through protection of civil liberties and human rights, as well as helping to organize police and judicial institutions so that the necessary social space is created for men and women to begin the work of restoring a nation’s life. The principle of establishing civil society complements the principle of restoration by extending “basic infrastructure” to include not just the material infrastructure of roads, electricity, and communication but the human infrastructure for peaceful communal life.

What are the challenges of the jus post bellum in the case of Iraq? Vice-President Cheney has spoken optimistically about a post-Hussein world. “Regime change in Iraq would bring about a number of benefits to the region. When the gravest of threats are eliminated, the freedom-loving peoples of the region will have a chance to promote the values that can bring lasting peace. . . . Our goal would be an Iraq that has territorial integrity, a government that is democratic and pluralistic, a nation where the human rights of every ethnic and religious group are recognized and protected.”

Stability, democracy, prosperity -- such hopes and goals are estimable. But how realistic? Iraq is rife with ethnic leaders who would see the end of Hussein as an opportunity to promote their particular faction’s agenda not build a nation. There would be movements for secession and demands for territorial governance. These internal squabbles would affect Iran and Turkey among others in the region. Many Iraqis, after the initial joy of seeing Hussein deposed, might turn on any occupying force as outsiders and even infidels. The experience of a post-Taliban Afghanistan is a reminder that follow-through promoting development after war is crucial. A measured evaluation of what has been accomplished in that nation so far does not offer great encouragement to assume primary responsibilities for a post-Hussein Iraq.


War, as the jus post bellum principle of repentance teaches, is not something to celebrate. We may use force justly, but we should always take up arms regretfully. There is little doubt that Saddam Hussein has engaged in, what the President terms, “a decade of defiance” toward the United Nations Security Council and its resolutions. It is important that he be made accountable to those obligations and punished if he does not. But regime change is a separate goal from compliance with the U.N. resolutions. It is the latter that is the first order of business. Perhaps that goal cannot be achieved apart from the forcible removal of Mr. Hussein from power. Time will soon determine that. Decisions about when to go to war, however, must always be coupled with explanations for why and how. That is demanded by the just war tradition. That tradition, as it evolves, may incorporate new arguments and new principles. It is our responsibility, as citizens and as disciples, to insure that the tradition develops in ways that lead to greater not less justice in the conduct of nations.

Kenneth R. Himes, O.F.M. is professor of moral theology at Washington Theological Union. His most recent book is Responses to 101 Questions on Catholic Social Teaching (Paulist, 2001).