Preventive War

Summary of Whitley Kaufman.
"What's Wrong with Preventive War? The Moral and Legal Basis for the Preventive Use of Force."
Ethics and International Affairs 19/3 (2005) pp. 23-38.

Here Kaufman argues that both commonsense morality and the just war tradition support preventive--and not just preemptive--war. That is, he argues that war against a future, but not yet imminent, threat is morally permissible, but only under the legitimate authorization of the UN Security Council.

Kaufman argues that Just War Theory does not univocally prohibit preventive war--in fact, he claims, a series of reputable philosophers of international relations have supported preventive war, with some caveats. Kaufman cites Augustine, Grotius, Gentilli, Pufendorf, Vattel, and Vitoria as scholars who have supported, in one form or another, the permissibility of preventive war. Modern readers often project their own idealistic, pacifist agendas onto historical just war theorists. Kaufman mentions a resolution passed by the Eastern Division of the American Philosophical Association, an article by Allen Buchanan and Robert Keohane, and an essay by Gary Wills as examples of philosophers who apparently take for granted that the Just War tradition straighforwardly condemns preventive war. While historical scholars were often wary of the potential for abuse of preventive war, Kaufman claims, they were not such staunch opponents of it as modern scholars generally believe.

He disregards consequentialism as capable fof providing a complete moral framework from which to address the question of preventive war. The central argument for preventive war is the same that justifies war in self-defense: "One is entitled by natural law and natural right (within limits, of course) to protect oneself and one's citizens against unjust harm"(Kaufman 28). If war is necessary to avert a future wrong, then it makes no moral difference whether the war happens sooner or later. Thus, if imminence is taken to mean temporal proximity, then future attacks need not be imminent to warrant anticipatory response. If, however, the real worry motivating the importance of temporal proximity is that of epistemic certainty, this provides no principled argument against preventive war either. First, even imminent attacks are not certain, since the attacker could be bluffing, or could simply "change his mind and withdraw." Second, says Kaufman, "one can surely be reasonably certain (at least in some cases) that the attack is forthcoming even before the moment of imminence"(Kaufman 30).

Next, he persues an argument from analogy between domestic coercion and the international use of force. Preventive force is used domestically in restraining orders, prohibitions on carrying weapons, and conspiracy laws. In the context of domestic law, individuals are justified in using force only in self-defense precisely because state coercion tkes care of prevention; if there were no such institutions, individuals would have greater leeway to exercise preventive measures against perceived threats. If international relations, therefore, is similar to a state of nature, then individual states are justified in using preventive force against likely attackers. Of course, the representation of international relations as a state of nature is changed somewhat by the creation of the UN, and Kaufman turns to that next.

Finally, Kaufman argues that the UN's authority, and specifically that of the security Council, has assumed the role played by a state government in the domestic analogy: it possesses a monopoly on the use of force, especially the use of preventive and retributive force. Kaufman recognizes that some legal scholars (Glennon, Franck, and Ramsey in particular--see p. 34-36) have questioned the legitimate authority of the UN, and have argued that the UN's recent failure effectively to protect states from aggressors--through the use of preventive force, where necessary--represents a return to the state of nature. It is argued that this, in turn, grants states the moral authority to exercise the preventive use of force. Kaufman responds that the UN Security Council's refusal to use preventive force in recent cases had more to do with the perception that war, in those cases, was not necessary, rather than with a prohibition on preventive war.

Kaufman concludes that while Just War Theory does not prohibit preventive war, the legitimate authority to engage in it rests with the UN Security Council, and not with particular states. The rule of law requires that states submit to the UN's legal authority whether they agree with its judgments or not.