Academic journal article Denver Journal of International Law and Policy

Preemptive or Preventive War: A Discussion of Legal and Moral Standards

Academic journal article Denver Journal of International Law and Policy

Preemptive or Preventive War: A Discussion of Legal and Moral Standards

Article excerpt

Common in today's discourse about U.S. foreign policy are the terms preemptive and preventive war. An enormous problem with the use of these terms is that there has been little attempt to clarify their specific meanings, much less initiate a discussion over their ethical and legal implications. This problem has resulted in an environment of ambiguity for determining and discussing a standard for when the United States is to engage in war. The objective of this essay is to raise the level of understanding of the important distinctions between these two terms by examining their legal, moral, and current uses. Through this investigation, I hope to achieve a clearer understanding of the war-making policies of our nation and all others.

First, it is necessary to discuss the significant intersection between the concepts of ethics and international law. At this point in history, one might describe international law as a system of largely unenforceable norms that nations share to better predict and evaluate behavior between states. What comprises these customs tends to emerge out of a concerted effort to search through historical precedent to find--and, when possible, to codify--normative interaction. There is no official body entrusted with this task, and it therefore might be explained as an accepted inter-subjectivity. One might even say that, often times, these norms or laws arise from each state's choice to refrain from a particular behavior since it would not like to see this specific action visited upon itself. I suggest that this is the same process that allows one to arrive at similar ethical determinations. Inter-subjectivity, or understanding of a shared reality, seems to be the critical building block for establishing a code of ethics or norms for a law of nations.

This is not to be confused with the concept of legal moralism, which contends that it is possible and necessary to codify a prohibition of behavior based on the shared morality of the majority in a society, even when the behavior does not endanger others physically or psychologically. (1) International law might instead be generally understood as seeking to protect members of international society without imposing cultural or religious biases or morals.

There is an essential distinction between personal moral behavior and the moral behavior of states. Individuals who negotiate for state governments might often be purely self-interested and oblivious to the common good of their people and, thus, sign unethical treaties that are advantageous only for the elite. Therefore, it is erroneous to assume that, unless a state truly represents the interests of its people, it is the single unitary actor in international affairs and is fully capable of acting morally. This circumstance is certainly problematic, but in the current global structure of nation-states there does not appear to be an obvious solution other than advocating for ethical arguments in the legal forum and criticizing those treaties that might undermine the common good. Hence, I intend to approach the topic of preemptive and preventive war with an ethical analysis aimed at optimistically creating the conditions for an inter-subjective legal consensus based on the stark difference between these two terms, in both their meaning and moral implications.

U.S. Department of Defense Dictionary

To begin, we will turn to the dictionary created by the U.S. Department of Defense (DOD) to reach for clarity on the distinction between the two terms in question. It would perhaps be overreaching to take these definitions as definitive, since they are but one linguistic clarification, and would thus fail the litmus test of a global inter-subjectivity. However, considering that the U.S. government produced this dictionary, the same government that brought the issue of preemptive and preventive war to the forefront of world politics, it does provide a substantive starting point. …

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