Using Military Force Against the Saddam Hussein Regime: the MORAL Issues

This essay is based on a lecture delivered to members and guests of the Foreign Policy Research Institute on December 4, 2002. Dr. Johnson is Professor of Religion at Rutgers University. His books include Can Modern War Be Just? (Yale University Press, 1984); The Holy War Idea in Western and Islamic Traditions (Penn State, 1997); and Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Tradition (Greenwood, 1991).

The moral debate over the use of military force against the Saddam Hussein regime in Iraq may be said to have started last August, when Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld stated that Iraq's possession of chemical and biological weapons of mass destruction (WMD) and its efforts to achieve nuclear weapons capability might justify preemptive military action and the removal of Saddam Hussein's regime. President Bush touched on this argument in his September 12 speech to the UN General Assembly, warning that Iraq's "outlaw regime" might supply terrorists with "the technologies to kill on a massive scale."

But the weight of that speech was given to listing Iraq's violations of the agreement that ended the Gulf War in 1991 and the host of Security Council resolutions stemming from Iraq's aggression since the 1991 cease-fire; Saddam Hussein's continued oppression of the Iraqi people; his use of torture, assassination, and chemical warfare against his enemies; and his diversion of food-for-fuel money while his people suffered and died from lack of food and medical care. These were issues that had been discussed in various contexts before the president's speech, but he made them part of his administration's case for the use of force against Iraq.

There are thus three arguments for the justness of using U.S. military force against the Hussein regime: (1) to preempt his using the WMD he now has and the nuclear weapons he is seeking, possibly by making them available to terrorists; (2) to enforce compliance with and punish Iraq for flouting internationally agreed requirements imposed on it after its 1990 aggression against Kuwait; and (3) to effect regime change, removing Saddam Hussein, punishing him for his crimes against humanity, and replacing his regime with a government that is more free, democratic, and committed to respecting human rights. The moral debate, unfortunately, has not gotten very far in examining these arguments with as much care as possible and evaluating them honestly.

To date the focus of the debate has been on preemption. Moral critics of the "preemptive action" discussed last summer have zeroed in on this to the exclusion of other issues. In mid-September Bishop Wilton D. Gregory, President of the U.S. Conference of Catholic Bishops, took exactly this limited line in a letter to President Bush arguing against any use of military force. A statement signed by 100 Christian ethicists and published that same month opposed any preemptive use of force. Apart from their exclusive focus on preemption, both these statements are problematic as moral analysis.

The Gregory letter begins by referencing the American bishops' trademark idea of a moral presumption against the use of armed force, an idea that is unique to them and never appeared in Catholic doctrine on war prior to the American bishops' 1983 pastoral letter, "The Challenge of Peace." Bishop Gregory then rehearses the just war requirements: just cause, right authority, right intention, reasonable hope of success, proportionality of good achieved over harm done, and noncombatant immunity. These are all important concerns, and I only question his omission of aiming to achieve a justly ordered peace. But could any action satisfy the bishop's concerns?

A "presumption against force" implies that force is inherently morally suspect, rather than (as just war tradition has always held) a possible tool for good or evil, depending on its user, justification, intention, and other circumstances. "Just cause" in the case of preemption is inherently difficult to demonstrate publicly without compromising intelligence-gathering and costing lives. Perhaps prepared before President Bush's UN speech, the letter makes no mention of the other lines of arguing for just cause laid out there. To have "right authority," Bishop Gregory called for Congressional authorization, broad public consensus, and international authorization, all of which requirements were well on the way to being met at the time and have since been satisfied.

On the Bishop's remaining requirements— reasonable hope of success, proportionality, and observance of noncombatant immunity— the letter paints a worst-case scenario in which the use of force against Iraq would cause regional instability, have a severe impact on the Iraqi population, escalate to a wider conflict, violate the immunity of noncombatants, and have other unpredictable bad consequences. These are legitimate concerns, but satisfying them requires prudential judgment, and the U.S. Catholic bishops have an execrable track record on this. Even if they were right on this occasion, the argument as stated seems intended to reinforce the presumption against the use of force, not to leave open the possibility that it might be justified in this case. Employing the prudential criteria in this way renders just war argument a form of utilitarian consequentialism, not the obligation-based moral logic that it properly is.

For most of the past forty years, Western just war thought has focused on the particular problems of nuclear weapons and America's involvement in Vietnam. This led some to what the late theologian and just war theorist Paul Ramsey called a "war against just war," a position others have described as just war, or modern war, pacifism. This position is essentially that, given the destructive capabilities of modern warfare, a just war is now impossible. The U.S. Catholic bishops' "presumption against war" is part of the legacy of this moral unease with contemporary warfare. As the bishops have developed and applied it in various contexts since 1983, the traditional just war categories have been transformed from moral guides to the practice of statecraft into a series of moral hoops through which statecraft must pass whenever it contemplates the use of armed force. The regular advancing of worst-case scenarios as unbiased moral advice further distorts just war reasoning. The Gregory letter goes far in advising prudential caution, but succeeds less well as a useful source of moral analysis regarding the use of force against the Saddam Hussein regime.

The statement of the 100 Christian ethicists similarly focuses on preemption. But what is gained by having these American citizens explicitly identify themselves as "Christian ethicists"? The statement was a political act, not an example of moral analysis. The signers speak as private individuals, possessing no special expertise in the ethics of war or government. Some of the signatories are pacifists, who would be opposed to any use of force for whatever reason at any time. As to the non-pacifist signatories, their rationale and whether other possible justifications might lead them to different conclusions are not laid out. Such a statement contributes little to the public moral debate.

A third such piece, issued as an op-ed under the aegis of the Institute for American Values in mid-November, is also flawed by too much focus on preemption but does better than the first two in analyzing the moral issues. The IAV also sponsored a public statement issued a year ago on the war on terror, which was signed by many American academics. Since I was among those academics, I was asked to consider adding my name to this new one on the use of force against Iraq. I declined for a number of reasons. I thought it too focused on preemption and inclined to try to use the argument against the preemptive use of force against Saddam Hussein as part of an attack on the new National Security Strategy (NSS 2002), which accepts preemption as one possibility for use of U.S. military forces. I also demurred from its description of the use of force as always a "necessary evil," since to me the just use of force can serve a positive good. And I found its treatment of the regime change concept shallow and dismissive. On the positive side, it laid out the central principles of just war thinking well, connected them properly to the exercise of statecraft, and provided a helpful moral analysis of the question of preemption and the problem of Saddam Hussein's violation of UN resolutions.

The problem with arguing from preemption is that preemption is inherently neither wrong nor right, but it is extremely difficult to justify. There must be a clear and present danger. While the administration has made a good case that the danger is clear, it has not demonstrated that it is present, in the sense of an attack definitely intended and in process of preparation. That may of course be sensitive to demonstrate publicly, but the administration should be held to producing such justification at some point, possibly at or even after the time of the preemptive use of force. The moralist may say that there must be justification, but cannot circumscribe it so that preemption is never morally possible. Judging this is the duty of the person(s) in sovereign authority. Persons not in that position of authority may only give their opinions and hold their leaders to account for their actions.

Moral discussion of the question of preemption is complicated by the assumptions of the Westphalian system of international order as incorporated in positive international law, where there is a tendency to regard first use of force across a national border as always wrong and second use as always justified. This aggressor/defender distinction does not fit well the case of WMD threats that could annihilate a significant part or even all of a state's population. There is clearly a great need to rethink this. In the meantime, the state of international law aids potential attackers, and I would have moral consideration of preemption proceed independently of the first use/second use distinction.

The second argument regarding the use of force against the Saddam Hussein regime is that the use of force is justified to enforce compliance and punish noncompliance with existing agreements, resolutions, and international law. The moral dimensions of this argument have gotten lost in the international debate over whether yet additional Security Council resolutions might be needed and the usefulness of another round of international arms inspections. Effectively political arguments, these obscure the deeper question whether, in moral and legal terms, Iraq's behavior under Saddam Hussein over the past twelve years finally deserves a robust military response. The IAV statement takes this as a convincing rationale for the justification of "at least preparing to attack Iraq. The UN Security Council resolutions have been flagrantly, and so far with impunity, violated by the Iraqi regime. The U.S. and its allies should have been willing to fight a just war over this issue years ago."

This line of reasoning offers the most straightforward international law justification for using military force against the Saddam Hussein regime. Because it reaches back to the obligation of the U.S. and its allies to respond to the 1990 invasion of Kuwait, it also fits closely the conditions of the traditional just war idea of just cause. Yet neither Bishop Gregory's statement nor that of the Christian ethicists mentions this, and overall there seems to be little concern for this in these statements. That is a mistake. Though not included in contemporary litanies of the just war criteria, historical just war tradition took the obligations incurred in truces with deep seriousness. Entry into a truce with intent to break its terms was considered an act of deception inherently opposed to the aim of establishing a just and peaceful postwar order. In terms of the law of war, deliberately breaking the terms of a truce reopened the conflict at the point at which the truce was made. It was questioned in winter 1991 whether the Coalition forces should have moved on to occupy Baghdad and depose the Saddam Hussein regime. The deliberate violation of the 1991 truce by Saddam Hussein's regime in principle has reopened the Gulf War and justifies resumed military action against the regime. Whether it is prudent to do so is another matter, but the question of justification is not at all doubtful under traditional just war reasoning.

The third argument is that Saddam Hussein's regime deserves to be deposed and replaced because of their evil behavior. This argument is especially morally interesting. In a time that has seen the growth of the idea that military intervention is justified in cases of gross abuses of human rights, one wishes for a moral debate that, following the indictment voiced by President Bush in his UN speech, holds Saddam Hussein to account for his history of torture, murder, and cruel oppression. In 1993, the U.S. Catholic bishops issued a statement declaring humanitarian intervention a duty in cases of gross human rights violations, observing that claims of sovereignty by those engaged in such violations have no absolute status in Catholic teaching, and accepting the use of force as a form of intervention. Other religious bodies and moralists, Christian ethicists and otherwise, voiced the same basic argument, favoring intervention including the use of military force to stop the violations and punish the violators.

Where are these voices now? Are the rights of Iraqis less important than those of Bosnians, Kosovars, and Rwandans? Does the fact that the United States has national-interest reasons for moving against Saddam Hussein mean that any use of force in this case would be immoral, as a 1998 resolution of the Presbyterian Church (USA) formulates the right of intervention?

The Catholic bishops' position on the rights of sovereignty is rich in its implications. Catholic teaching on this reflects the idea of sovereignty found in Western political philosophy as late as the American and French revolutions, but replaced more recently by the idea of sovereignty in the Westphalian system. Under the older idea, sovereignty is an essentially moral construct; persons in sovereign authority are responsible for the good of their political community, for the "common weal." This implied establishing an order that served justice and achieved peace, along with an obligation to other political communities to support order, justice, and peace in and among them. Failure to discharge these obligations removes the rights of sovereignty. This line of reasoning is found, in different ways, in both the Declaration of Independence and the French Declaration of the Rights of Man.

In contrast to this moral conception of sovereignty is that regularly associated with the Peace of Westphalia, by which sovereignty is defined by a particular territory and by recognized governmental control over it and its inhabitants. This conception may be read to grant any government immunity from interference in the way it handles its internal affairs and treats its people. Thus Slobodan Milosevic, on his first appearance before the International Tribunal for the Former Yugoslavia, denied the Court's authority to indict and try him, claiming sovereign immunity. Similarly, Saddam Hussein has insisted that weapons inspectors-and UN resolutions of any kind-not infringe on Iraq's sovereignty. On the older, moral understanding of sovereignty, though, he has forfeited the right to sovereign immunity by his tyrannical exercise of government. We already see the resurgence of this idea in the indictments handed down by the international tribunals for Yugoslavia and Rwanda. Indeed, though the idea of war crimes tribunals for deposed tyrants and their regimes is relatively new, that of removing and replacing an evil regime is not at all new: consider Tanzania's deposition of Idi Amin in Uganda, Vietnam's deposition of Pol Pot and the Khmer Rouge in Cambodia, and the United States' removal of Manuel Noriega in Panama. Regime change is not an innovation cooked up in the mind of Paul Wolfowitz; it is a feature of the international order. Not only is there no duty not to seek to effect regime change, there may in fact be a duty to seek to do so, both on behalf of the immediate victims of their cruelty and on behalf of the international order itself.

The traditional idea of just cause allows use of force to punish evil, and this would surely apply to Saddam Hussein's regime. Another of the core just war concepts is that the aim of such force include the establishment of peace. Here a further dimension emerges: the obligation to replace the evildoer's government with one that exercises sovereign authority for good ends, that can create an order that serves justice and peace. Thus regime change means not only getting rid of Saddam but also creating a democratic Iraq that can serve as a model for the region: an idea put forward by Wolfowitz and taken up Thomas Friedman among others.

This is a very important idea that deserves serious attention. I support it strongly, but its likelihood, costs, and implications for long-term American involvement need to be considered, for no political good comes without some other political sacrifice. The goods and sacrifices should be identified, so it can be decided whether the necessary sacrifices are worth making, given our society's obligations has to its own people and to other nations. It is also important in such rebuilding to seek the involvement of other nations and international and nongovernmental organizations. After Bosnia, Kosovo, and Afghanistan, we know what works best: a relatively robust military presence to maintain a general order by deterring most outbreaks of force and punishing those that occur, coupled with a range of types of civilian activities aimed at reconstituting the society and establishing good government.

A running theme of all this is that we must take seriously the difference between moralists and those in political responsibility. The West's just war tradition is about the achievement of a peace characterized by a just political order both within and among states. It is mistaken to think of peace simply as the absence of war. Indeed, the use of armed force is properly a tool for good political leadership to use in the service of that fuller and more genuine peace. It is good or bad as it intends to serve or not serve that goal. Without addressing whether the United States will or should go to war with Iraq over the actions of Saddam Hussein's regime, I would note that the United States is already using armed force against that regime, and I consider it justified. The position of absolute pacifists is of a different sort from that of those in the moral debate who reduce the question to one of prudential calculation, who forget the critical distinction between the role of the moralist and the role of those in political responsibility. As the classic just war theorists understood, the justified use of force is one of the tools those in sovereign authority must have available. To think otherwise is to disregard the kind of world we live in.

Bishop Gregory then rehearses the just war requirements: just cause, right authority, right intention, reasonable hope of success, proportionality of good achieved over harm done and noncombatant immunity. These are all important concerns and I only question his omission of aiming to achieve a justly ordered peace. But could any action satisfy the bishop's concerns?

The Paradox of War and Pacifism***Christian Perspectives on War***Just War Theory and Terrorism:Applying the Ancient Doctrine to the Current Conundrum***Libertarian Just War Theory

Just War Theory and Pre-emptive Actions
Indeed it seems that in our fallen world war is an inevitable part of life. Jesus spoke plainly in Matthew 24:6-8 and said that wars would be a part of the history of mankind right up until the end:

"You will be hearing of wars and rumors of wars. See that you are not frightened, for those things must take place, but that is not yet the end.
7 "For nation will rise against nation, and kingdom against kingdom, and in various places there will be famines and earthquakes.
8 "But all these things are merely the beginning of birth pangs.

James, in his New Testament epistle, gives us the cause of wars: "What is the source of quarrels and conflicts among you? Is not the source your pleasures that wage war in your members? 2 You lust and do not have; so you commit murder. You are envious and cannot obtain; so you fight and quarrel." Wars often occur because someone wants more power or more pleasure and sees the only way of obtaining it is through taking it from someone else. This is the epitome of selfishness and self-centeredness and both are a result of sin that entered the world in the fall.

The "Just War Theory" has been developed to help Christians determine the appropriateness of military conflict. There are some who believe that war is never justified and so they see the idea the "Just War Theory" as being a needless discussion. We do, however, live in a world that Jesus said would involve wars and rumors of wars. Therefore, we must give every effort to try and determine what a "Just War" is and when it is to be waged.

The third argument is that Saddam Hussein's regime deserves to be deposed and replaced because of their evil behavior. This argument is especially morally interesting. In a time that has seen the growth of the idea that military intervention is justified in cases of gross abuses of human rights one wishes for a moral debate that following the indictment voiced by President Bush in his UN speech holds Saddam Hussein to account for his history of torture, murder and cruel oppression. In 1993 the U.S. Catholic bishops issued a statement declaring humanitarian intervention a duty in cases of gross human rights violations observing that claims of sovereignty by those engaged in such violations have no absolute status in Catholic teaching and accepting the use of force as a form of intervention. Other religious bodies and moralists Christian ethicists and otherwise voiced the same basic argument favoring intervention including the use of military force to stop the violations and punish the violators.

The Moral Question of Abortion***Serpents, Doves, and Abortion***Between Two Holocausts

STENBERG v. CARHART :Justice Scalia, dissenting.

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Peace of Westphalia by which sovereignty is defined by a particular territory and by recognized governmental control over it and its inhabitants. This conception may be read to grant any government immunity from interference in the way it handles its internal affairs and treats its people.

The Avalon Project : Treaty of Westphlia*** the Protestant Deformation AND AMERICAN FOREIGN POLICY

Under the older idea sovereignty is an essentially moral construct; persons in sovereign authority are responsible for the good of their political community for the "common weal." This implied establishing an order that served justice and achieved peace along with an obligation to other political communities to support order justice and peace in and among them. Failure to discharge these obligations removes the rights of sovereignty. This line of reasoning is found in different ways in both the Declaration of Independence and the French Declaration of the Rights of Man.

Was the American Revolution a Biblically Justified Act?*** Paul and Civil Obedience in Romans 13:1-7

Thus regime change means not only getting rid of Saddam but also creating a democratic Iraq that can serve as a model for the region: an idea put forward by Wolfowitz and taken up Thomas Friedman among others.

Watch on the West: The Use and Abuse of US Constitutional Law as ... ***Islamic Law & its Challenge To Western Civilization

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.