Magazine | June 23, 2014, Issue

When to Go to War

Point of Attack: Preventive War, International Law, and Global Welfare, by John Yoo (Oxford, 272 pp., $35)

‘There never was a war in all history easier to prevent by timely action,” said Winston Churchill in his Iron Curtain speech of 1946, “than the one which has just desolated such great areas of the globe.” Had they confronted Hitler over Germany’s remilitarization of the Rhineland in 1936, or the Anschluss of Germany and Austria in 1938, or his aggressive claims on the Czech Sudetenland later that same year, the French and British could have prevented the war — because Germany was still weak.

Instead France and England waited to declare war until Germany actually attacked Poland in 1939. But by then Hitler had already undone the straitjacket imposed on his country by the Treaty of Versailles and had put Germany in a position of overwhelming strategic superiority. By 1939, the conquest of Europe could no longer be averted.

The United Nations Charter stands out as one of the few peace treaties that would actually have made the last war more likely. This is because, as commonly understood nowadays, the U.N. Charter permits preemptive self-defense, but only if an attack is “imminent.” Otherwise, a first use of force is illegal without Security Council “authorization.” Therefore, assuming a deadlocked Security Council, it would have been illegal for the Allies to act preemptively against Nazi Germany until the attack on Poland was finally “imminent.”

This supposed rule has several interesting features. First, it is remarkably stupid, given the circumstances that led to World War II. Second, it fails any moral test because it doesn’t distinguish between acts of pure aggression and military actions that are urgently necessary for humanitarian or defensive reasons. And, not surprisingly, it is not the rule that the Allies thought they were agreeing to when they ratified the Charter.

War is always a tragedy. But oftentimes war is the answer, because the alternatives can be so much worse. That is the argument of John Yoo’s new book, Point of Attack. Yoo attempts to reconnect international law to reality — from which it has become mostly unwound, especially in academic circles. A former senior attorney in the Bush-era Justice Department, Yoo attained brief notoriety for his advocacy of sweeping presidential powers in response to 9/11, including the power to use enhanced interrogation. Now back in his previous position as law professor at the University of California, Berkeley, Yoo takes a quintessentially academic approach to the subject, first tracing the history of the international law of war, then proposing what he thinks the right rule is.

He starts the story at the beginning, in the middle of the terrible Peloponnesian War between Athens and Sparta. After its failed expedition to Sicily, Athens demanded that Melos, a small island city-state aligned with Sparta but formally neutral, join its coalition or face destruction.

According to Thucydides, a lively legal debate ensued. Melos claimed that it had the right to refuse to join any coalition it didn’t want to join. The Athenians responded that “expediency” was on their side. Yoo presents this as an early historical example of the dispute between a moral argument and material interest.

What continues to elude scholars, however, is why the Athenians found it necessary to threaten Melos in the first place. The expedition to Sicily marked the beginning of the end for Athens. Perhaps they felt that they needed to cow Melos in order to avert a break of neutral city-states in favor of Sparta. Maybe they acted out of what they thought was dire necessity.

But was it just? Classical and medieval philosophers struggled to devise a theory of the just war. “St. Augustine’s approach justified a broader scope for war” than Cicero’s had, writes Yoo: “Cicero’s just war was either defensive or sought compensation for a past injury. Christian just war pursued a broader, punitive dimension that sought not only to make the state whole but also to punish the wrongdoer for violating moral principle.”

The 17th-century Dutch philosopher Hugo Grotius, commonly considered the father of modern international law, alighted on a cardinal problem: Sometimes, both sides in a dispute have “justice” on their side.

The Anschluss presents the dilemma in stark form. Nazi propagandists claimed that the German-speaking peoples wanted to unify, and they had on their side the principles of “self-determination” and “political independence” enshrined in Woodrow Wilson’s Fourteen Points. But if this union proceeded, Czechoslovakia — the key to the defense of Europe — would be surrounded by Nazi Germany on three sides, and become indefensible.

The episode demonstrates how dangerous a bad rule of international law can be. Once widely accepted, rules of international law help shape both diplomacy and public discourse. It is true that governments have often ignored international law, but only when they could afford the political risks of violating it. And sometimes they can’t: The unresolved diplomatic dispute over the legality of the Iraq War helped to mire the war in controversy and nearly crippled the war effort.

Yoo argues for a rule that distinguishes between legitimate and illegitimate uses of force according to a cost-benefit analysis based on global welfare. “Only when the benefits to global welfare — not just to that of the intervening nations — exceed the costs should nations resort to force,” he writes. Yoo draws a page from the “Chicago school” of law and economics, characterizing peace as a “public good” (like clean air) that “the market” will not supply absent the right legal incentives.

Yoo relies a bit too much on economic rationality (at one point he suggests that an increase in “per capita world gross product” might be a useful benchmark). An economic cost-benefit analysis will strike some as cheapening life. And real-world decisions of war and peace normally have to make do with woefully incomplete information about costs and benefits.

Still, Yoo’s rule cannot be hastily dismissed, because, unlike the Charter, it corresponds to the actual practice of states. Especially in democratic societies, the desire to achieve the greater good is what almost always animates leaders as they contemplate sending the nation’s young men and women to war. The principles are not economic, but they are utilitarian, as Yoo’s rule implies — although, to be sure, political self-interest and the vagaries of public opinion impose their own constraints.

Yoo seems to accept that Iraq falls into the category of misguided wars because Saddam was not likely to attack the U.S. anytime soon, and it turned out that there were no WMD. He thus passes too quickly over a case that, despite all the controversy, deserves more careful treatment than virtually anyone has given it.

Those who think the Iraq War was a mistake take it for granted that a military occupation was unnecessary because there were no WMD. But if that is so, a military occupation was necessary to prove that a military occupation was unnecessary. Otherwise, what would we have known?

More precisely, why was Saddam unable — or unwilling — to prove that he had no WMD? Hans Blix, the chief U.N. inspector, would have leapt at any evidence that Saddam was in compliance with disarmament obligations. But in report after report to the Security Council, he reported only that he could come to no firm conclusion and needed more time. It was soon clear that Saddam’s regime was simply too criminal and irregular to permit a conclusive audit.

The Iraq situation raised a crucial question for both grand strategy and international law. Absent conclusive evidence, should the benefit of the doubt go to Saddam, or to his enemies? Once that problem was brought to the Security Council, the place to resolve it was the Security Council. But Resolution 1441, which warned against “further material breach,” failed to resolve it, or rather resolved it in Saddam’s favor, by apparently shifting the burden of proof to the U.S.

In general, the issues Yoo addresses in his book — and there is hardly one he leaves untouched — deserve better treatment than they’ve gotten among legal scholars. One of Yoo’s strengths is his ability to organize and categorize with clarity. Point of Attack manages to stitch international law and reality back together again not just at points, but all along the seam.

The victors of World War II thought that they were ratifying a treaty that would permit the use of force in accordance with the purposes of the U.N. Charter, which included “the prevention and removal of the threats to the peace.” Obviously Churchill had no intention of granting Joseph Stalin a veto over Britain’s use of force in matters of urgent concern to the British Empire. The point of the U.N. was to facilitate preventive action, not constrain it. Alas, that understanding of the Charter died with those who created the United Nations. What remains today is the poorly written text of the Charter, which unfortunately supports the idea that preventive self-defense is illegal without Security Council authorization.

Notwithstanding the Charter’s text, virtually every U.S. administration since World War II has affirmed the right to act preventively when necessary, regardless of the imminence of the threat. Consider the Cuban Missile Crisis, or the fact that Clinton nearly bombed North Korea’s nuclear reactor at Yongbyon in 1994 and decided not to for (unsound) military reasons, not legal ones. Even Israel’s 2007 strike on a Syrian nuclear reactor was later endorsed by Candidate Obama in a speech to AIPAC. As Yoo patiently demonstrates, the rule of the Charter has never worked, will not ever work, and needs to be jettisoned.

A just war can be rooted in compelling reasons of state. Charles de Gaulle lived to see France nearly destroyed by Germany twice, yet he believed to the end of his days that a strong, unified Germany was vital for the future. Henry Kissinger once asked him how he hoped to keep an unfettered Germany from dominating Europe. Said de Gaulle simply, “Par la guerre.”

– Mr. Loyola served as counsel for foreign and defense policy to the U.S. Senate Republican Policy Committee.

Mario Loyola — Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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