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A `Just War'?
A Critique of Richard Falk

BY STEPHEN R. SHALOM
www.zmag.org (October 21, 2001)

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In an article entitled "Defining A Just War" in the October 29 issue of The Nation, Richard Falk declares that "The war in Afghanistan ... qualifies in my understanding as the first truly just war since World War II." Falk goes on to warn that the justice of the cause may be "negated by the injustice of improper means and excessive ends," but this caveat doesn't take away from his initial declaration. He didn't say that a unilateral U.S. military response to the events of September 11 could be just, but that "the war" is just. This sentence, coming as it does from one of the country's most prominent and respected advocates of international peace and justice, will have, I'm afraid, profoundly deleterious consequences. "This is a just war," people will say; "even Richard Falk says so." And his later points about the need for following the legal and moral principles of necessity, proportionality, discrimination, and humanity will be largely ignored.

But even if we interpret Falk's position as saying that a U.S. war could be just, as long as it follows the principles he elaborates, his argument is still terribly wrong. First, because his principles were violated from day one of the war, and, second, because he dismisses the alternative of acting through the United Nations.

One doesn't know exactly when Falk finalized his article. Perhaps by now -- as UN officials and aid agencies are pleading for a halt in the bombing so that food can get to literally millions of Afghans at risk of starvation -- he has come to believe that the war has crossed the line from just to unjust. But there were warnings about the impact of bombing on desperate Afghan civilians well before the first bomb fell. (For example, the New York Times reported [30 Sept. 2001] that "the threat of American-led military attacks turns" the Afghan people's "long-running misery into a potential catastrophe.") That a great humanitarian crisis was likely in the event of bombing was known, and thus the war never met Falk's criteria of discrimination (don't harm civilians), proportionality (force must not be greater than the provoking cause), and humanity.

Moreover, the war never met Falk's criterion of necessity (force should not be used when non-violent means are available). On October 5 -- two days before the onset of the bombing -- the Taliban ambassador to Pakistan stated: "We are prepared to try him if America provides solid evidence of Osama bin Laden's involvement in the attacks on New York and Washington." Asked if bin Laden could be tried in another country, the ambassador said, "We are willing to talk about that, but ... we must be given the evidence." Indeed, said the ambassador, legal proceedings could begin even before the United States offered any evidence: "Under Islamic law, we can put him on trial according to allegations raised against him and then the evidence would be provided to the court." Washington dismissed the ambassador's remarks, refused to provide evidence, declared that its demands were non-negotiable, and initiated its bombardment of Afghanistan. Was the Taliban offer serious? Could it have been the basis for further concessions? Who knows? Washington never pursued it. Surely, however, going to war in such circumstances does not meet the criterion of necessity.

Falk rejects a pacifist response to the events of September 11, and I think he's right: on a hijacked plane heading into a skyscraper, force may be needed to stop the slaughter; and if terrorists who direct these hijackings refuse to voluntarily turn themselves in, then force may be necessary to apprehend them and bring them to justice. Falk rejects as well a response of excessive militarism, and again I think he's correct (though he fails to see how the excessive militarism he rejects shares many features with the actual war being waged, the war he terms "truly just").

Another approach Falk rejects is one which emphasizes the role of the United States in the world. Falk agrees with proponents of this approach that Washington is "certainly responsible for much global suffering and injustice, giving rise to widespread resentment that at its inner core fuels the terrorist impulse." Falk agrees too that longer-term concerns must be addressed, including "finding ways to promote Palestinian self-determination, the internationalization of Jerusalem and a more equitable distribution of the benefits of global economic growth and development" -- though he oddly adds that "of course, much of the responsibility" for failing to address these concerns "lies with the corruption and repressive policies of governments, especially in the Middle East, outside the orbit of US influence." But while regimes outside the U.S. orbit, such as Iraq, Syria, and Libya, are no doubt vile, it is hard to see what responsibility they bear for preventing Palestinian self-determination. The obstruction there would seem to come from Washington itself and from a country very much within the U.S. sphere: namely, Israel. Nor do Iraq, Syria, and Libya have nearly as much to do with global inequality as those nations closely tied to the United States -- Saudi Arabia and the Gulf oil sheikdoms.

Palestinian self-determination is not simply a "longer-term concern." True, its impact on anti-U.S. terrorism will not be immediate. An Israeli withdrawal from the occupied territories tomorrow would not erase decades of deep anti-Americanism from the minds of many Middle Easterners. But peace in Palestine would immediately end the terrorism being experienced on a daily basis by Palestinians (as well as Israelis).

Still, Falk is right that all people are entitled to security, and Americans are not wrong to be concerned about their well-being as long as the people responsible for the horrific attack of September 11 remain at large.

So how might the culprits be brought to justice? One option is to use the UN or international law (which -- unlike the pacifist position -- does not preclude the use of force) to apprehend the suspects in order to place them on trial for crimes against humanity. Such an approach, says Falk, would not "deal effectively with the overall threat." But Falk's arguments here are extremely weak.

Falk says first that there are problems with a public trial. I'll consider whether these problems are as serious as Falk suggests, but notice first the implication of Falk's position. The United States issued an ultimatum to the Taliban to turn over bin Laden and his Al Qaeda associates. Let's say they did so. What would Falk have had the United States do with them then? Execute them without a trial? Hold a secret trial and then execute them? If you object on principle to publicly trying bin Laden and company then you are objecting to Washington's public position. (I say Washington's "public" position, because the United States' dismissal of the Taliban's October 5 offer shows it was never interested in a turn-over.) To say that bin Laden should not be tried is saying that the United States should not even have demanded that bin Laden be turned over, but instead simply begun bombing.

What are the problems with public prosecution, according to Falk?

It would be impossible to persuade the United States government to empower such a tribunal unless it was authorized to impose capital punishment, and it is doubtful that several of the permanent members of the Security Council could be persuaded to allow death sentences.

What is Falk saying? That this is a just war because the alternative would be a policy which the United States wouldn't accept? Since when do we judge whether a country's policy is right by reference to whether the country likes alternative policies? Iraq invaded Kuwait in 1990 in part because Kuwait was violating its oil production quotas to Iraq's detriment. Would anyone think of justifying the Iraqi invasion by noting that it would be impossible to persuade Baghdad to pursue the alternative course of action -- negotiation?

Now perhaps what Falk really means is that a trial would be wrong because he, Falk, would not accept any punishment short of the death penalty. If so, he ought to say this, and not put it on the U.S. government. Some progressives may feel that they could make an exception to their usual opposition to capital punishment in this case, but in fact the argument against the death penalty is stronger, rather than weaker, in cases of terrorism. As terrorism experts note, while executing a lone murderer may not propel very many people to become murderers, executing a terrorist leader with many followers creates a martyr and builds support for the terrorist cause. In any event, to justify the U.S. war on the grounds that "several permanent members of the Security Council" (that is, Britain and France) oppose the death penalty is bizarre to say the least.

Falk goes on to spell out what he sees as the problems with a public trial: the evidence linking bin Laden to the September 11 attacks and other instances of global terrorism may well be insufficient to produce an assured conviction in an impartial legal tribunal, particularly if conspiracy was not among the criminal offenses that could be charged. European and other foreign governments are unlikely to be willing to treat conspiracy as a capital crime.

We should reject a trial because the evidence may not be sufficient to convict? But yet the evidence is good enough to wage war, with all its horrendous consequences? And then there's that capital punishment argument again: the evidence may be sufficient only if conspiracy can be charged -- which of course it can be -- but this may preclude execution. So instead we follow a course that will knowingly lead to a huge number of deaths.

Falk goes on to note that "it strains the imagination to suppose that the Bush Administration would relinquish control over bin Laden to an international tribunal." But, again, is it the job of the Left to support wars -- and deem them "truly just" -- whenever the nation waging the war is unwilling to act in a just and reasonable way? It no doubt strained the imagination to suppose that the United States government would have allowed elections in Vietnam in 1956 which would probably have been won by Ho Chi Minh. But would anyone conclude that therefore Washington was justified in waging war on Vietnam?

Falk continues with more in the same vein: "it also seems highly improbable that the US government can be persuaded to rely on the collective security mechanisms of the UN...." It was also highly improbably that Al Capone could have been persuaded to rely on legal methods of earning a living. That doesn't make his criminal activities "truly just."

For better and worse, the United States is relying on its claimed right of self-defense, and Washington seems certain to insist on full operational control over the means and ends of the war that is now under way.

Yes, indeed, Washington is insisting on full operation control. But the Left is not supposed to merely note Washington's insistence, but criticize it when that insistence is wrong.

Falk then declares that...at this stage it is unreasonable to expect the US government to rely on the UN to fulfill its defensive needs. The UN lacks the capability, authority and will to respond to the kind of threat to global security posed by this new form of terrorist world war.

The first sentence is somewhat ambiguous. Is Falk saying only that it is unreasonable to expect Washington to rely on the UN? (This is true. It is unreasonable to expect the United States to act lawfully in general, given its long record of ignoring international law, thumbing its nose at the UN, and choosing military solutions to problems that might have been solved peacefully.) Or is he saying that it is unreasonable for the U.S. government to rely on the UN, the interpretation suggested by the second sentence in the quotation above?

Why does the UN lack the "capability, authority, and will" to respond to terrorism? In terms of authority, the UN has the legal right to take any measures that it deems necessary to deal with terrorism, while the U.S. right to act is legally constrained -- yes, it may act in self-defense to an armed attack, but self-defense applies only to cases where (in the words of the Caroline precedent) "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." So self-defense would permit the United States to shoot down attacking enemy planes, but not to wage a war half way around the globe a month after a terrorist attack, a war that U.S. officials say might go on for years.

What about the UN's capability? The UN is an extremely weak institution and has no military units of its own. To be sure, one reason the UN is so weak is because major powers, not least the United States, have determined to keep it ineffective. So Washington has been delinquent in paying its UN dues, has refused to establish a Military Staff Committee that could coordinate a UN military response, has failed to provide the UN with military contingents (as called for in Chapter VII of the UN Charter), and has flouted international law (ignoring, for example, the ruling of the World Court demanding that the U.S. cease what were essentially terrorist acts against Nicaragua). But despite these past failings of the United States, there is no reason the UN would be incapable of action today if the United States allowed it to do so. The Security Council could call for the turn-over of those responsible for the September 11 attacks and if force were needed to get them, it could request the loan of appropriate forces from member states, including the United States, that would operate under the direction and control of the Security Council. The only obstacle to this happening is the cooperation of the United States government. So once again we meet Falk's strange moral logic: the U.S. war in Afghanistan is "truly just" because the UN is incapable of acting by virtue of the U.S. unwillingness to go to the UN.

Why does all this matter? Why should we care whether the United States goes to war on its own or instead goes through the United Nations, which may employ force? It matters to us for precisely the reasons it matters -- from the other side -- to the U.S. government. Why has Washington avoided going to the UN? First, because doing so would establish the precedent that the United States is bound by law and can't do just whatever it feels like. The Bush administration doesn't want this precedent and, correspondingly, we should want it. We should want a world where -- as much as possible -- law, not vigilantism, prevails.

Second, the U.S. resists going to the UN because it will then not have full freedom of action. Once it is determined that "something" should be done about the September 11 perpetrators, there are countless decisions to be made and the question is: who is to make them? Should these decisions be made by Washington or by some international body? The Bush administration wants to keep all decision-making in its own hands. We should want -- as much as possible -- to minimize unilateral decision-making by the United States. Is there a guarantee that the UN would make better decisions than Washington? No. But if one considers the crucial decisions, there is good reason to believe that the UN would have decided better. And many of these decisions involve precisely the sorts of concerns that Falk raised when he described the problems with the militarist approach.

The UN would have been likely to demand evidence, rather than just taking George Bush's word for bin laden's guilt. The UN would have been more likely to pursue the Taliban's offer to turn over bin Laden. Perhaps the UN would have determined that the offer was just a stalling tactic. But shouldn't this determination be made by an international body rather than by one country alone? Consider: there was a terrorist bombing of the legislature in Indian-held Kashmir on October 1, killing dozens of civilians. India suspected Pakistani involvement. Would we want India to issue an ultimatum to Pakistan and then decide whether Pakistan has complied, and then, if New Delhi decides no, it launches a war? This is a prescription for disaster. Would anyone consider such a war "truly just"?

Another reason why we shouldn't want individual nations deciding on their own to launch a war to combat terrorism is that any war involves serious negative human consequences. Pacifists believe that these adverse consequences outweigh any conceivable justification for war. Non-pacifists believe that sometimes war is the only way to prevent even more horrible outcomes, but surely the most careful moral consideration must precede any decision for war. So who should make this moral determination? In Afghanistan, it is excruciatingly clear that the harm to the civilian population is immense. The United States might believe that these civilian deaths will be "worth it" (to use Madeleine Albright's response when she was asked about the half million dead from sanctions on Iraq), but is this really something to be decided by the Bush administration alone? By saying that it is "just" for the United States to be waging this war outside the confines of the United Nations, Falk has removed the one potential check on unilateral U.S. action. The well-being of millions of people in Afghanistan are on the line, and it can't possibly be right that their fate -- and the value of their lives -- should be determined unilaterally by Washington. Of course, actions that kill large numbers of civilians should be condemned whether or not there is the UN imprimatur. But a decision by the UN is likely to be more just than one made alone by the United States.

Nor can it be right that the judgment regarding which targets are appropriate to hit or which weapons are appropriate to use (such as cluster bombs, condemned by the Red Cross) be simply made in the United States. Nor the choice of countries to attack (something currently being debated within the Bush administration). Falk wants "force to be used within relevant frameworks of restraint," but then dismisses UN oversight, the one restraint that might actually have an effect. If you approve of the unleashing of a tiger, you can't very well complain that the tiger is now destroying more than humanity, necessity, proportionality, and discrimination permit.

Moreover, the war on Afghanistan threatens to destabilize Pakistan (a country with nuclear weapons), and much of the Arab and Islamic world. One would expect the international community to be more sensitive to this danger than the United States government has been, as it conducts what George Bush called its "crusade" against terrorism. To U.S. policy-makers, over-reaction has certain benefits: it creates (as the Cold War did) an atmosphere conducive to military spending and restrictions on civil liberties, and it facilitates the acquisition of world-wide military bases and ties to reprehensible regimes. For the rest of us, though, the international dangers from over-reaction are substantial. And we might note that the prospect of destabilization is far greater in the face of a U.S. war than an international operation: Iran, for example, which condemned the U.S. bombing, indicated that it would have been willing to support a UN action. More importantly, many nations -- including U.S. allies in the Middle East and Europe -- have urged due caution, warning that a massive assault will play into bin Laden's hands, a caution that would likely be given more weight in an international, than a U.S., response.

An international response will not always be possible. In some situations, one can imagine China or Russia -- or the United States -- using their veto power in the Security Council to block a UN action that would have been warranted on the basis of justice. But there is no reason to think that that would have been the case regarding September 11. Both China and Russia for their own reasons, both good and bad, support strong action against terrorism. Security Council action would have been forthcoming, though -- one hopes -- it would not have been all that the United States wanted.

The problem with the United Nations was not that it would have blocked appropriate action, but that it might have given the United States a blank check -- which would hardly be an improvement over unilateral U.S. action. This is what the UN did during the Gulf War, when it permitted the U.S. to unilaterally decide whether Saddam Hussein's offers were worth considering, when to start bombing, which targets to hit (including civilian infrastructure), and on which terms to end the war. Then Washington used its veto power to prevent the Council from lifting the sanctions imposed before the war, so that hundreds of thousands of civilians have died over the past decade, while Saddam Hussein has been strengthened.

This seems to be the only circumstance under which the United States is willing to go to the UN: when it thinks it can get a blank check. We should call instead for real UN control over any military action and more generally real UN determination of the appropriate response -- short range and long range -- to the events of September 11. We should further push for this control to lodge in the General Assembly, rather than the Security Council -- something permitted by the Uniting for Peace Resolution -- where there is no big power veto. This is by no means an ideal solution. But it is far better -- from the point of view of humanitarianism and justice -- than unilateral U.S. action. And it offers a serious response to our fellow citizens who are rightly concerned about their security.

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