On Preemption and the Right of Neutrals in an Age of Terror-War

Jeffrey Tiel

December 1, 2002

The Department of Defense has been trying very hard to justify its new “preemptive” terror-war doctrine, namely that the United States will attack terrorists before the terrorists attack the United States. But the language of “preemption” is confusing, because of its association with the moral doctrine of “preemptive strike.” In the ethics of war, a preemptive strike occurs when a nation which recognizes that it is about to be attacked launches its own attack on those preparing the assault. The 1967 Six-Day War between Israel and the Egyptian coalition is an excellent example. As the Arab nations prepared for a massive invasion of Israel from multiple sides, Israel struck first from the air and wholly disrupted the planning. But preemptive strikes are difficult to justify, because it seems as if the “who attacked first” principle (usually used to determine who is the aggressor) is upended. Thus, ethicists of war work diligently to hone the stringent conditions under which a preemptive strike may be morally justified.

Since the United States is already at war with international terrorists and the regimes that support them, the use of “preemptive strike” language is morally confusing, for the United States is already the defender after the aggressive attacks on September 11, 2001. Thus, we must interpret the Department of Defense to mean not that they are employing a moral doctrine of Preemptive Strike to justify the start of a war (since the United States is already at war) but that they are employing a tactical doctrine of preemptive attack. In other words, the military is prosecuting the terror-war not merely by defending the United States, but by actively seeking out and destroying the terrorists and their supporters all over the world. The Department of Defense would do better to abandon the use of the term “preemptive” altogether in this context, and simply refer to a military tactical term that characterizes its offensive strategy.

The confusion over preemption raises another, and perhaps more important, issue: if the United States intends a global military campaign against terrorists, what does that entail for the rights of neutrals? Do attacks into their territory require satisfaction of the stringent conditions on preemptive strikes? Traditionally, nations who prefer to avoid taking sides in a war declare their neutrality and more or less strictly try to do nothing that gives the impression that they seek to advance either side’s cause materially. But President Bush announced early in the terror-war that nations must choose which side they are on: the side of freedom and civilization or terror and barbarism. He did not leave any room for nations to declare their neutrality. And this departure from the usual ethical understanding of warfighting requires some scrutiny.

Under the President’s global-attack doctrine, terrorists may be attacked wherever they may be found, regardless of borders. Hence, a nation’s declaration of neutrality will be interpreted by the United States either as a determination to support terror or as an act of such negligence that it invites US forces to carry out the task at hand. Allowing terrorists to walk one’s streets as Switzerland and Spain allowed Nazi and Allied agents to walk their streets during WWII has been rejected. As a matter of prudence, of course, the US will not simply launch attacks on identified terrorists in allied countries like France or Germany, but will instead indicate to those countries where their own forces should strike (if perchance the US discovered a terrorist cell in France or Germany that those countries had not already been watching). So, US commando raids in Paris are not the worry. Nor need one be concerned for nations actively sponsoring terrorism like Syria, Iran, Iraq, and the like, since these nation’s governments have been put on notice that “regime-change” is in order where terrorist-support continues.

The worry concerns nations that are neither particularly allied with the US nor strong enough or willing enough to suppress terrorists internally. Such nations might like to declare neutrality, but such a declaration will be viewed as the creation of a “safe-haven” for terrorists, inviting attack. Oddly enough, the terrorists have finally learned the other lessons from Vietnam, namely that just as guerilla warfare against conventional forces succeeds by deliberately obfuscating the distinction between combatants and non-combatants in a village, so terrorists can be shielded against attack by relying on the non-combatant status of neutral nations.

Perhaps we have granted too much: is it really proper to describe a nation’s unwillingness to participate in the war on terror as “neutrality”? Since neutrality is a doctrine of staying out of conflicts between nations, one might wonder whether the term has any real force in a terror-war. Consider an analogy: what would it mean for a nation to declare its neutrality with respect to piracy on the high seas? They would not attack pirates? That pirates could find safe harbor along their shores? The responsibilities of nationhood include a fundamental regard for the international rule of law, and harboring pirates on the grounds of “neutrality” would only invite another power to sail into one’s harbor and destroy the pirate vessels. In just the same way, a nation wishing to avoid involvement in the terror-war may choose not to send its forces beyond its borders to seek out terrorists, but if those terrorists are within its borders, failure to act against them is an open invitation to other nations to sail in and act responsibly. Failing to act against known terrorists is complicity in their conduct; it is exactly the minimum condition on supporting terrorists that President Bush meant by the terms “safe haven.”

Finally, under the rules of neutrality in a war between nations, if an enemy military unit seeks safety in a neutral country, it is disarmed (technically classified as “internment”). Terrorists never seek nor allow neutrals (or anyone else) to disarm and intern them, and thus the term “neutrality” cannot ever apply to a nation with respect to terrorist organizations. Thus, the President was correct: nations must choose whether to support the freedom of nationhood or to support those who would devastate its fundamental conditions. There is no neutral ground.

Jeffrey Tiel is an assistant professor of philosophy at Ashland University.