Jus Ad Bellum After 9/11:

A State of the Art Report

Mark Rigstad

Oakland University

Introduction

In the aftermath of the September 11, 2001 attacks on the World Trade Center and Pentagon (9/11), the U.S. government declared that it would take the lead in waging a new “Global War on Terrorism” (GWOT). The official policy guiding this war, widely known as the “Bush Doctrine,” announced that no distinction would be made between terrorists and the “rogue states” that sponsor or harbor them.[1] Hence, a new form of world war has commenced which seeks not only to interdict the activities of transnational sub-state terrorist networks, but also to conquer and reconstruct at least some of the terrorist-affiliated states that the U.S. has designated as belonging to an “Axis of Evil.”[2] The wars that have since ensued in the name of counter-terrorism and humanitarian/democratic regime change have ignited an explosion of interest in just war theory (JWT). The purpose of this essay is to describe the patterns of JWT that have unfolded in the nascent post-9/11 era, and to assess how well just war theorists have so far addressed the issues raised by new modalities of counter-terrorism warfare. By focusing on a GWOT that hinges upon American power, and by drawing largely upon Anglo-American theoretical discourse, I shall be neglecting numerous questions and various modes of just war thinking that are of singular importance in other contexts. In particular, I shall neglect, as much of the recent literature has largely neglected, the special ways in which issues of just cause and right authority tend to play out in all-too-numerous domestic civil war contexts. Also, by addressing the notion of humanitarian intervention only from a counter-terrorism tangent, I shall neglect much of the full breadth and complexity of related issues. But a narrower focus on modes of JWT that have arisen in direct response to 9/11, however limiting, may at least have the advantage of shedding some light on a constellation of related problems, which, if not truly hegemonic, at least currently occupies global center stage.

Just war theorists have traditionally concerned themselves with questions about ethical grounds for going to war in the first place (jus ad bellum), questions about ethical conduct in the course of battle (jus in bello), and questions about the ethics of post-conflict settlements (jus post bellum). I shall focus here on the first class of questions, paying special attention to how jus ad bellum principles of just cause, discrimination, necessity and proportionality apply to the very idea of a just GWOT, and to the kinds of interstate wars that have recently been heralded as worthy of this mantle. Although I shall offer my own dovish critical comments along the way, my primary aim is not so much to provide decisive answers as to give adequate formulations of the salient questions and to point out neglected areas of theoretical discussion.

A few words about the general nature of the discourse of JWT are warranted at the outset in order to warn against certain standard simplifications, and in order to atone in advance for the heuristic simplifications that I shall introduce here. Broadly conceived, JWT is not a firmly established set of conventional criteria that can be applied mechanically to every conceivable instance of armed conflict. As Jean Bethke Elshtain has recently noted, “the just war tradition does not present a series of boxes to check, and, should you get more than a given number, then war it is.”[3] Instead, JWT is the discursive practice of systematic public reflection and argument about how best to distinguish between ethically justifiable and unjustifiable warfare.[4] In this broad sense, it includes a wide array of approaches to the ethics of war and peace, ranging from contingent pacifism to self-righteous militarism.[5] The familiar principles of JWT are double-edged swords or, ideally, the common materials of many and varied conceptual plowshares. These principles are not names for timeless truths first discovered by moral or spiritual founding fathers. Instead, they are elements of a persistently contestable and evolving shared vocabulary of ethical justification and restraint. There is no monolithic just war tradition, but at best competing traditions of just war theorizing.[6] Every age from which recorded examples have been preserved has yielded distinctive patterns of just war thinking and as many different theories as original theorists. The best examples are those we judge by our own lights to offer the most important insights into how the use of arms might be restrained, made more humane, and ultimately directed towards the aim of establishing lasting peace and justice.

1. Conventional and Revisionist Jus ad Bellum Principles

It will be helpful in analyzing the theoretical ramifications of 9/11 and the ensuing GWOT to bear in mind a heuristic distinction between two types of JWT. Conventional expository JWT works within the ambit of a Westphalian understanding of public international law in an effort to reveal the principles that constitute its internal morality.[7] Accordingly, conventionalists embrace principles of strong sovereign immunity from foreign aggression and intervention. And they conceive of just wars as wars of self-defense that are waged for the cause of resisting international aggression. Punishment of an aggressor once it has been repulsed is sometimes added as a purely derivative auxiliary just cause.[8] Other subsidiary just causes for warfare – such as adjuvant defense on behalf of others who are resisting foreign aggression, invited counter-intervention in foreign civil wars, and possibly, but more contentiously, preemptive self-defense against imminent aggression[9] – are to be understood as legitimate exceptions that are ultimately grounded in a global legal order of non-aggression among sovereign states. In contrast, unconventional critical JWT is revisionist in relation to the Westphalian paradigm of public international law,[10] and sometimes exceptionalist in championing the prerogatives of just warriors unilaterally to flout prevailing legal principles.[11] Revisionists seek to expand just causes for the deployment of military forces beyond mere self-defense against ongoing or imminent attacks to include (1) a humanitarian right to override conventional immunities of state sovereignty in order to provide armed protection for innocents abroad against certain grave harms,[12] and/or (2) a right to wage preventive wars against the (less than imminent) threat that “rogue states” might equip sub-state terrorist organizations with weapons of mass destruction (WMD).[13] Moreover, since rogue states not only export terrorism, but they also oppress and brutalized their own citizens, some revisionists would combine (1) & (2) in the construction of (3) a liberal cosmopolitan right to engage in interstate wars of forced democratic regime change.[14]

The principle of just cause is prior to other jus ad bellum considerations in the sense that a war cannot be, or is exceedingly unlikely to be discriminating, necessary or proportional in the absence of a just cause.[15] It is conventionally understood that the presence of a just cause for war is a necessary condition, but not a sufficient condition, for justifying recourse to arms.[16] As a logical revision of this conventional approach, Fernando Téson embraces an alternative hermeneutic understanding of JWT principles as considerations that “incline” judgment, rather than as strict necessary and jointly sufficient conditions. But according to both the analytic and the hermeneutic approach, the principle of just cause imposes a basic constraint (or constraining pressure) on what kinds of aims may be pursued by means of the resort to arms. To have just cause is to have an ethically legitimate aim of a kind that can sometimes be justifiably pursued by means of war – but not always. One might have a just cause that is nevertheless too trivial to justify war. Since having a just cause is “not a matter of scale,” whether a proposed war is a just means of pursuing a particular just cause is also a question of discrimination, necessity and proportionality.[17] But these questions must be framed in relation to specific just causes.

A just war must also be discriminating at the outset. This consideration imposes further important constraints upon estimations of necessity and proportionality. If one has just cause C against X, but not against Y, then war against Y can neither be necessary nor proportional. Thus, there is arguably a second jus ad bellum principle of discrimination. This may seem surprising to those who are familiar with the recent literature. Recently promulgated lists of conventional JWT principles typically mention jus ad bellum principles of necessity (or last resort) and proportionality, but no jus ad bellum principle of discrimination. The importance of discriminating between ethically legitimate and illegitimate enemies/targets is typically mentioned only as a jus in bello consideration. Why? The distinction between jus ad bellum and jus in bello principles of JWT is commonly understood to coincide with the distinction between, on the one hand, the general “theater” level of national war planning and, on the other hand, the consequent and subsequent contexts of military maneuver that are proper to specific brigades and individual soldiers.[18] Why should we follow recent standard enumerations of JWT principles in supposing that theater level war planners need not distinguish between ethically legitimate and illegitimate enemies/targets?

Perhaps the reason for this standard omission is the assumption that the principle of just cause essentially or necessarily involves a triadic relation: "Agent A has just cause C against legitimate enemy/target X." If the principle of just cause is necessarily triadic – if, in other words, there is a conceptual connection between having a just cause and delimiting the range of legitimate enemies/targets against whom one has it – then the issue of discrimination is always implicit in the principle of just cause, and there is no need to introduce discrimination as a separate jus ad bellum principle. Alternatively, if just cause is not necessarily triadic – if, as I have suggested, just cause is simply a matter of having an ethically justifiable aim which may or may not be sufficient grounds for war against anyone – then issues of discrimination (between guilty and innocent, responsible and non-responsible, combatant and non-combatant) may arise independently of the question of just cause at the jus ad bellum phase of ethical deliberation about warfare. To complicate matters, the analytic question about the grammar of just cause can only be answered in relation to specific just causes, and these carry different implications for jus ad bellum identification of legitimate enemies/targets. A punitive just cause is necessarily triadic. The same is not the case, however, for the most basic conventional just cause of self-defense. That identifying legitimate enemies/targets is analytically distinct from having just cause for armed self-defense is revealed in the traditional issue that Grotius raises immediately after enumerating just causes (and long before his systematic treatment of jus in bello discrimination). As a qualifying addendum to the just cause of self-defense, he raises the question of whether, in defending oneself, one is permitted to kill someone who is an innocent obstacle to the achievement of one’s end.[19] A timelier and more difficult question of jus ad bellum discrimination is the question of whether it is ethically justifiable for purposes of self-defense against terrorism to treat foreign states that harbor terrorists as enemies on par with the terrorists themselves. If it makes sense to raise these questions at the theater level of war planning, then it makes sense to speak of discrimination as a jus ad bellum principle analytically distinct from the principle of just cause.

Issues of discrimination are epistemically loaded in every context of military decision-making, but the burden of proof is especially weighty in jus ad bellum contexts in which the available time for deliberation is plentiful. The identification of legitimate enemies/targets calls for painstaking exactitude because mistakes on this point are morally momentous. The conventional right to defend oneself in response to aggression ought to be discriminating in the sense that it is a right to defend oneself against the aggressor(s). To wage war against any others is to become an aggressor oneself. The judgment that a proposed war effort will place one on the just side of the divide between aggressor and defender should therefore be the conclusion of careful ethico-historical analysis and argument. Although it seems reasonable to suppose that similar considerations of jus ad bellum discrimination may be applied to other, revisionist just causes, there may be exceptions. If the threats to a vulnerable population are shifting, haphazard or merely potential, then it may make sense to exempt armed humanitarian intervention from a strict application of the jus ad bellum principle of discrimination. In contrast, it is difficult to imagine conditions under which a similar exemption could reasonably be allowed for a putatively just war of humanitarian regime change. Such a war should target only those elements within a rogue government that are clearly responsible for making it corrupt and oppressive. A similar, and perhaps even a greater degree of exactitude in discrimination should apply to putatively just preventive counter-terrorism warfare. If this type of warfare may legitimately target rogue states, it would need to be clearly established and well known in advance of a preventive resort to arms that the regimes in question have both the capacity and the active determination to arm terrorists with WMD. In the post-9/11 JWT literature, there has been perhaps too little discussion of jus ad bellum issues of discrimination (even as implicit issues of just cause), and little discussion of what exactly the epistemic standards for these issues should be. For example, is proof beyond a reasonable doubt of direct material support of terrorism necessary for just preventive war against a rogue regime? Or is it enough that a preponderance of the evidence should suggest such support? Or does this novel modality of warfare require for its justification the construction of a novel standard of evidence?

A just war, conventionally understood, must also be necessary as a last resort in the sense that no other available means will suffice for the successful achievement of effective self-defense. This standard may also be applied to other revisionist just causes. Accordingly, taking up arms is necessary as a last resort when no other available means short of war will suffice to prevent non-imminent but massively destructive attacks, to protect others from grave harms, or to reform rogue regimes. Warfare becomes necessary as a last resort when no other available means are sufficient to the task of successfully prosecuting a just aim or cause.[20] This conventional way of understanding the principle of last resort as a doctrine of military necessity does not require that all other available means of attempting to achieve a just cause must actually be pursued and exhausted. Such a standard would be impossible to satisfy; for, as Michael Walzer notes, “There is always something more to do: another diplomatic note, another UN resolution, another meeting.”[21] The conventional understanding of last resort also makes this principle independent of estimations of proportionality. It does not merely stipulate that warfare, in order to count as a necessary last resort, must be marginally more economical (in terms of relevant costs and benefits) than alternative non-military means of achieving the same end. Rather, a just war must be the only available means of succeeding in the achievement of a discriminating just cause or aim. Since the nature of an aim determines what is necessary for its achievement, a discriminating just cause will largely determine the conditions for satisfying the principle of last resort. For example, the resort to arms is far more likely to be necessary for purposes of self-defense against ongoing aggression than, say, for purposes of preventive counter-terrorism or humanitarian regime change. Ongoing military aggression has rarely been repulsed by means short of war. But there are many effective non-military means of preventing terrorist attacks and promoting democracy abroad.

According to Thomas Hurka’s revisionist approach to JWT, the principle of last resort does not impose a strict standard that war should be the “only available sufficient means” of achieving a just cause. Instead, on his account, the principle of last resort is reducible to the principle of proportionality.[22] War becomes rationally necessary, on his approach, if it is the optimal course of action from the standpoint of a relevant cost-benefit analysis. In other words, if warfare is the most proportional means of effectively achieving a just cause, among a range of alternatives including those short of war, then the military option simply is the last resort. The rationally necessary means of pursuing a just cause is the most proportional means available. This revisionist way of reducing the principle of last resort to the principle of proportionality is more permissive than the conventional approach because it does not require that warfare be the only sufficient means available, but only requires that warfare be marginally more effective than the non-military alternatives.

According to conventional approaches to JWT, the military means of prosecuting a just cause must not only be the only effective option available, but it must also be proportional (a) in the sense that the benefits to be achieved by war must outweigh the harms that it inflicts,[23] (b) in the sense that the use of arms should not be “excessive,”[24] or (c) in the sense that “a minimum of force” should be employed.[25] The less harmful the occasion for just cause – e.g., the less harmful the ongoing aggression, non-imminent threat, humanitarian crisis, or rogue regime – the more stringent the proportionality requirement becomes.[26] Estimations of proportionality also become more or less stringent depending upon the kinds of just cause under consideration. On the first, most common construction (a), the principle of proportionality requires a cost-benefit analysis, albeit one that is embedded within a principled, rights-based JWT. The rights-based qualification of cost-benefit analysis places certain limitations on the kinds of costs and benefits that can count towards the estimation of the proportionality of a just war. Hurka gives a clear illustration of how the principle of just cause imposes such a restriction. Imagine a nation that is mired in an economic recession and has just cause for warfare. It has good reason to believe that waging this war will help to alleviate its economic woes. Even so, the economic benefits of the war “surely cannot count toward its proportionality,” because profiteering is not a just cause for war.[27] Other things being equal, a profitable war may be better, more desirable than an unprofitable war; but the benefits of profiteering do not make a war more just. Such economic benefits are therefore ethically irrelevant from the standpoint of JWT. For the conventionalist, only increased security from the harms of aggression can count in favor of the proportionality of war. Hence, the harms that would likely result from alternative responses – e.g., appeasement, surrender, resistance short of war, etc. – must outweigh the harms that would likely result from the resort to armed self-defense.

Some revisionist just war theorists allow that additional “contributing” just causes may increase the level of justifiable harm that satisfies the requirement of proportionality in wars fought primarily for the cause of self-defense against aggression.[28] Accordingly, a hybrid defensive-humanitarian war would be proportional if and only if the harms likely to result from measures short of war would exceed the harms likely to result from defensive war less any net harms associated with humanitarian efforts. In this way, the availability of additional revisionist just causes, over and above the conventional just cause of self-defense, may “contribute to a war’s proportionality” by increasing the amount of harm that may count as proportional.[29]

2. 9/11 & Conventional Jus ad Bellum

With these broad principles and issues in mind, let us now revisit 9/11 and its aftermath. I shall help myself, without detailed supporting argument, to the premise that al-Qaeda’s attacks were unjust. If, contrary to this assumption, al-Qaeda’s attacks were ethically justifiable, then it would follow, from a conventional JWT precept that can be traced back at least as far as the work of Hugo Grotius, that the U.S. could have no just cause in response to 9/11. According to this precept, “with regard to the act itself, a war cannot be just on both sides, any more than a lawsuit can be.”[30] At most, Grotius allows that there are exceptional instances (he mentions the Peloponnesian war) in which both sides to a conflict may be said to fight permissibly, owing to an unavoidable and “good faith” ignorance of where the just cause lies. In such cases, enemies may mutually declare a “formal” or “legal” war under the law of nations.[31] In contrast, according to some revisionist versions of JWT warfare can easily be just on both sides, if an initially just war is waged by unjust means.[32] On this alternative, even in the conduct of a war prosecuted for a just cause, violations of jus in bello standards may suffice to give just cause to the other side. Accordingly, even if al-Qaeda did have a discriminating just cause for proportional war against the U.S., the jus in bello indiscriminate nature of the 9/11 attacks may still have sufficed for a revisionist claim of just cause for U.S. war efforts in response. Assuming that al-Qaeda’s 9/11 attacks lacked jus ad bellum justification, however, the question of just cause becomes a one-sided issue.

There were, of course, no “ongoing” terrorist attacks after 9/11; but there was good reason to suppose that there would be ongoing al-Qaeda efforts to orchestrate further attacks. So, the U.S. was often said to have faced the kind of aggression that qualifies as a conventional just cause for self-defensive war against al-Qaeda. On this point, it matters little that al-Qaeda is not a member of the world society of sovereign states. As Brian Orend rightly notes, “there is nothing, in just war theory or international law, which says that aggression can only be committed by states.”[33] Supposing the U.S. had just cause to defend itself with the force of arms after 9/11, it nevertheless remains an open question of jus ad bellum discrimination whether it had just cause against any entity other than al-Qaeda. In particular, did the U.S. have just cause to defend itself against any foreign states? It was surely conceivable that U.S.-led counter-terrorism efforts in Afghanistan could have targeted al-Qaeda elements without also endeavoring to topple the Taliban government. On this alternative, Taliban forces might have been left alone so long as they did not attempt directly and forcibly to obstruct military operations against al-Qaeda. Yet, there was little or no discussion of this possibility in the weeks after 9/11 in the U.S. public sphere. Instead, the cause of counter-terrorism was immediately shoehorned into the prevailing Westphalian framework of interstate warfare. Were there sufficient grounds for this move?

From the standpoint of conventional JWT, interstate warfare in response to a sub-state aggressor is an awkward fit. One prominent way of attempting to assimilate 9/11 into a conventional interstate framework has been to claim that the al-Qaeda attacks represented a new form of terrorism, or “mega-terrorism,” which resembled Pearl Harbor more than it resembled previous acts of sub-state terrorist organizations.[34] In this way, 9/11 was construed as an attack on the order of conventional international aggression. The key analogy is open to dispute, however. Unlike Pearl Harbor (and especially unlike the Pearl Harbor of popular memory) 9/11 did not come as a surprise attack without precedent or prior declaration.[35] The previous 1993 car bombing of the World Trade Center, the 1998 fatwa of the World Islamic Front, the 1998 embassy bombings in Kenya and Tanzania, and the 2000 bombing of the USS Cole made it immediately and painfully clear that 9/11 was not the start of a new war, but the continuation of an old one. From the standpoint of conventional JWT, 9/11 is more accurately described as a wildly successful but indiscriminate transnational attack in an ongoing sub-state Islamist insurgency against U.S. military predominance and political influence abroad. So, if the U.S. had just cause for war with al-Qaeda, it had it at least since 1993.[36] In 1998 it acted accordingly in conducting simultaneously one intuitively proportional bombing raid against known al-Qaeda targets in Afghanistan, and one intuitively disproportionate and indiscriminate missile strike on a Sudanese pharmaceutical factory that was dimly and erroneously suspected of al-Qaeda affiliation.[37] Viewed in this context, 9/11 looks nothing like Pearl Harbor. It was part of an ongoing transnational conflict.

Conventionally construed, 9/11 therefore did not present a jus ad bellum moment at all. It was a jus in bello moment preceded by others similar in kind. When compared with previous attacks, there was nothing novel about the location, nor anything novel about the kind of harm inflicted. Al-Qaeda had already launched an attack on U.S. soil, and it had already killed indiscriminately abroad. So, from the standpoint of conventional JWT, 9/11 did not create a new just cause for war. It may have increased by a substantial increment the amount of force required for a proportional defensive response; for al-Qaeda had not previously killed indiscriminately on U.S. soil, nor did any of its prior acts inflict harm on such a massive scale. Understood in this way, 9/11 need not have changed the terms of the war in a way that left conventional JWT behind. To the conventionalist, the indiscriminate nature of the 9/11 attacks makes them war crimes, which are presumptive occasions for international law enforcement against sub-state actors by means short of war. But in the absence of law enforcement cooperation from abroad (e.g., from the Taliban or from Pakistan), if the U.S. had just cause to employ proportional instruments of armed self-defense against al-Qaeda in 1998, then it still had the same right in the fall of 2001. The only difference would be that after 9/11, the U.S. would also have new grounds for escalating the kind of “targeted” (discriminating) attacks that it made against Afghani al-Qaeda facilities in 1998. 9/11 clearly raised the threshold of proportionality as al-Qaeda proved itself to be a more dangerous enemy than previously imagined. A conventionally justifiable military response would have involved targeted transnational attacks that would have crossed borders to reach responsible or affiliated sub-state actors; but in the absence of direct hostilities from the Taliban such attacks could not justifiably become interstate attacks between sovereign entities. From the standpoint of conventional JWT, it is inherently indiscriminate to commence interstate warfare as a means of combating the war crimes of sub-state actors.

In the months prior to 9/11 the Bush administration had already departed from the precedent set by the Clinton administration by declining to launch targeted retaliatory strikes in response to the bombing of the USS Cole. According to Condoleeza Rice, the reason for this change in strategy was that President Bush was “tired of swatting flies” (despite never having tried it).

There is a question of whether or not you respond in a tactical sense or whether you respond in a strategic sense, whether or not you decide that you are going to respond to every attack with minimal use of military force . . . on a kind of tit-for-tat basis . . . [or] . . . not doing this tit for tat, doing this on a time of our choosing.[38]

The line that Rice draws between tactical and strategic response is significant. It distinguishes the maneuvers of specific brigades and individual soldiers from the “theater” level of national war planning. As explained above, in conventional JWT, this division of military labor corresponds to the distinction between jus in bello and jus ad bellum principles.[39] Thus, the Bush administration’s frustration with “minimal” (proportional in the third (3) sense above) in bello tactics was expressed in the form of a desire to wait for a new jus ad bellum moment – “a time of our choosing” – when the scope of just cause and the grand strategy of the conflict could be redefined. Accordingly, after 9/11 the Bush administration immediately claimed to have just cause for a new and more expansive interstate war, despite the strangeness of finding it in a jus in bello violation.

3. 9/11 & Revisionist Jus ad Bellum

The dominant alternative and revisionist way of finding just cause for interstate warfare in the 9/11 attacks hinges largely upon the Shultz Doctrine. This doctrine holds that if states have just cause for armed self-defense against sub-state terrorist organizations, then they also have just cause to use such arms against “states that support, train, and harbor terrorists.”[40] In recent years, revisionist Anglo-American just war theorists have tended to embrace this doctrine very quickly and uncritically. For instance, in a first rate treatment of JWT that is sure to become a classroom standard, Orend asserts the Shultz Doctrine without any critical discussion of specific reasons for or against it.[41] Similarly, Hurka invokes the doctrine as if it were self-evident.[42] Shultz, Orend and Hurka may be right, of course. Their position has been supported over the course of the last twenty years by the United States, Israel, the United Kingdom and Australia. But there is clearly room for debate here, given that the doctrine is not an accepted element of international law, and given that it has been rejected by most other nations of the world, including such European powers as Spain, Germany and France. If strong norms of state sovereignty are the best protections that weak states have against the dominance of strong states, then in many quarters of the globe the Shultz Doctrine may reasonably appear to be a menacing innovation of imperial law.[43] From a cosmopolitan perspective, it may seem to contain an overly lax interpretation of the jus ad bellum principle of discrimination. And it may seem designed to benefit those in positions of military power in greater proportion than their demonstrable contribution to the global common good. In the absence of an international consensus establishing a meaningful cosmopolitan definition of “terrorism,” terrorists tend to be in the eye of the beholder. Under such conditions, many cautious thinkers worry that it may be too easy for powerful states to invoke the Shultz Doctrine as a rationale for illegitimate aggression as well as legitimate self-defense.

When we compare the Shultz Doctrine to conventional principles of JWT that are rooted in “the domestic analogy,”[44] it becomes apparent that it represents a loosening of the jus ad bellum principle of discrimination in a way that substantially erodes the degree of restraint that it has traditionally placed upon recourse to arms. In terms of responsibility for the harms of war, there is a significant difference between attacking another state and giving safe harbor to sub-state organizations that directly carry out such attacks.[45] We do not treat the families and friends of murderers as if they were murderers themselves.[46] And even if the support that they give rises to the level of aiding and abetting in the commission of the murder, we do not treat them as accessories to murder with the same severity reserved for the murderer proper. It would therefore be exceedingly difficult to defend the Shultz Doctrine by analogy with domestic norms of liability to suffer lethal measures of force. Since drawing some such domestic analogy has been the dominant conventional method of argument among just war theorists, revisionists who find the Shultz Doctrine intuitively attractive will need to show alternative grounds for justifying the discrepancy between domestic and international norms of responsible agency and liability to lethal attack. This element of revisionist JWT calls for serious critical thinking about the threshold of liability that might make some forms and degrees of direct state sponsorship of sub-state terrorism tantamount to terrorism itself. Successful defense of this revisionist approach to jus ad bellum discrimination also calls for the construction of a reasonably cosmopolitan conception of ‘terrorism’ capable of addressing worries about self-serving hegemonic bias (see section 4 below).

The Bush Doctrine incorporates and further elaborates the Shultz doctrine. It conceives of sub-state terrorist organizations as the “clients” of an alliance or “axis” of rogue states that wish to disrupt a U.S.-dominated global political order.[47] These states personify evil and are activated by settled dispositions of hostility inasmuch as they “reject basic human values and hate the United States and everything for which it stands.”[48] Here the notion of American exceptionalism is invoked to identify the enemies of the U.S. as the enemies of humanity. If the U.S. is the champion of “basic human values,” then its enemies must be the enemies of everyone, everywhere. For a hegemon that is truly exceptional in its degree of ethical virtue, there is no strategic contradiction in embracing unilateralist means of pursuing the putatively multi-lateral aims of global counter-terrorism. Terrorism may be in the eye of the beholder, but according to supporters of Bush Doctrine exceptionalism U.S. perceptions are ethically authoritative for the world community.[49] The most obvious problem with this position, which critics of U.S. policies have been eager to point out, is that the mixed record of history does not adequately support the U.S. claim to exceptional virtue.[50]

The Bush Doctrine goes well beyond the Shultz Doctrine by advancing the notion that global terrorism is sponsored by a conspiracy of rogue states known as the “Axis of Evil.”[51] The “9/11 Commission Report” found no evidence that the al-Qaeda attacks were funded by any foreign state.[52] But sponsorship comes in many forms. Although al-Qaeda members were not exactly the “irregular troops”[53] of the Taliban, they were part of a well-established cooperative alliance. Like Pakistan, al-Qaeda gave financial, technological and professional support to the Taliban’s efforts to resist the Tajik and Uzbek insurgency of the Northern Alliance from 1996 to 2001. In return, the Taliban gave safe haven to al-Qaeda and rebuked U.S. requests for cooperation in international law enforcement. If, contrary to the objections raised above, the Shultz Doctrine is defensible, then the U.S. had compelling grounds for viewing the 9/11 attacks as expanding a previously existing just cause to include a discriminating just cause for interstate war against the Taliban. Beyond Afghanistan, the idea that 9/11 was an act of a multi-state-sponsored terrorist conspiracy has been kept alive by the perception of common causes and connections between al-Qaeda and other militant Islamist groups, some of which were known or suspected recipients of direct support from Iraq, Iran and Syria. The conspiracy theory implicit in the Bush Doctrine’s claim that these states belong to an Axis of Evil is crucial for imagining that 9/11 provided just cause for an interstate GWOT beyond Afghanistan. Yet, the underlying imputation of conspiracy between these states might be even more dubious than the oft-derided moral Manicheanism of the Axis of Evil idea. Only a pan-Arab nationalism oddly allied with Persian nationalism could overcome the deep sectarian divisions that exist between al-Qaeda, Hizbollah, Hamas, etc.; and only a pan-Islamic alliance could overcome existing tensions between Syria, Iraq, Iran, etc. Even supposing that each of these entities harbors settled malice towards the U.S. and its allies in the GWOT, the divisions between them make them somewhat unlikely (though not impossible) co-conspirators. How much evidence of menacing cooperation between these states is sufficient to satisfy the jus ad bellum principle of discrimination and widen just cause for armed self-defense such that the entire Axis of Evil should become a legitimate enemy/target?

The Bush Doctrine also adds to the Shultz Doctrine a highly controversial right of preventive war that substantially lowers the standard for claiming just cause in the first place. The incompatibility of this element of the Bush Doctrine with the principles of conventional just war theory has been duly noted in the critical literature. The most prevalent form of counter-argument maintains that, according to conventional standards, unilateral preventive military operations are in principle unjust.[54] A second form of objection stresses that a defensible right of preventive warfare would have to satisfy the highest standards of evidence in order to avoid the pitfalls of the slippery slope that leads from just prevention to anarchical aggression and numerous fruitless wars.[55] And a third, empirically contingent objection holds that were wars of preventive self-defense ever justifiable in principle, it would have to be under conditions that include the existence of an effective and morally reliable set of international institutional safeguards imposing penalties for spurious campaigns.[56] Given the unconventional permissiveness of a preventive just cause, it would seem reasonable to suppose that, as a counterpoise to the threat of licentious militarism, the corresponding evidentiary standard of discrimination should be unconventionally high. For instance, it might seem reasonable to suppose that a discriminating just cause for fighting preventive wars on every front of the Axis of Evil would have to rest on evidence that proves the combined foreign menace well beyond any reasonable doubt.

To many minds, even if the members of the Axis of Evil are not co-conspirators, the prospect that any one of these states might alone make WMD available to al-Qaeda or some similar anti-American or anti-Western terrorist group raises the stakes well above what would make an alternative, international law enforcement approach seem like a good gamble. The potential transfer of such weapons threatens noncombatant immunity and makes estimations of the imminence of attacks radically uncertain.[57] The U.S. has a tremendous capacity for enacting strategies of military deterrence. Yet, terrorist martyrs are not readily deterred. It therefore makes better strategic sense to focus on deterring leaders of states that might otherwise act on their sympathies for, or common interests with, Islamist terrorist organizations. Again, whether this approach is also ethically justifiable depends in part upon whether a reasonably revised construction of the jus ad bellum principle of discrimination can incorporate a standard of liability to attack that is more permissive than domestic norms. Revisionist just war theorists need to give greater attention to this standard than has so far been given. We do not ordinarily hold arms merchants liable for crimes committed with the weaponry that they make available on an open market. So, why should states be liable to preventive attacks on grounds that they are likely (how likely?) to enter into similar transactions?

Even granting that, as the Bush Doctrine maintains, the U.S. had just cause for preventive self-defense against al-Qaeda and its supporters, it remains an open question whether warfare was a necessary and proportional means of prosecuting this cause. The necessity and proportionality of the wars that ensued after 9/11 depend largely upon whether less bellicose alternatives would have sufficed (on a conventional construction), or would have sufficed as efficiently (on Hurka’s revisionist construction) to contend with the al-Qaeda threat. It is therefore important for theorists of a just GWOT to consider the strategic literature. Frequently noted in the critical literature on the Bush Doctrine’s approach to global counter-terrorism is the evident strategic contradiction of embracing unilateralist means of promoting the putatively multilateral benefits of counter-terrorism.[58] Accordingly, many prominent critics of post-9/11 U.S. security strategy have called for a shift towards genuine or increased multilateralism,[59] while others have recommended the attenuated force of international “balancing”[60] or greater investment in “soft power” strategies.[61] Surprisingly, the critical literature has less frequently noted that, as Richard Falk recently put it, the “the great unlearned lesson of 9/11” is that conventional military superiority is a poor guarantor of human security in an age of sub-state transnational terrorism.[62] It is worth reminding ourselves that the 9/11 attacks were carried out with weapons no more menacing than box-cutters. This fact, far more than the strategic contradiction inherent in a unilateral GWOT, provides a powerful reason for thinking that effective counter-terrorism should be implemented primarily, if not entirely, through legal methods of global governance.

If the Shultz doctrine alone did not justify expanding the ongoing war against al-Qaeda to include war against the Taliban, or war against Iraq, then putatively humanitarian aims were sufficient, for some just war theorists, to fill the normative gap.[63] The "responsibility to protect" and the corresponding "right of humanitarian intervention" are controversial innovations of emergent public international law and revisionist just war theory. The 2001 Report of the International Commission on Intervention and State Sovereignty was designed to forge the basis for a new international legal consensus on the question of when states, unilaterally or multilaterally, may justifiably take military action against another state for the purpose of protecting its people.[64] The potentially consensus-building impact of this report was eclipsed, however, by the terrorist attacks of 9/11 and the ensuing debate over the justifiability of a GWOT.[65] The prospect for international consensus on humanitarian military intervention is now no better than it was in 1994 when the world community stood idly by as genocide unfolded in Rwanda. And the UN Security Council has offered few signs of a willingness to embrace the terms of the proposed consensus as the basis for innovation in public international law. Yet, despite this impasse in the emergence of international legal consensus, the foreign policy establishment of the U.S. executive embraced and promulgated the idea of humanitarian military intervention with unprecedented vigor after 9/11. Although the Bush Doctrine’s GWOT is fundamentally a military policy of strategic national self-defense, it incorporates an explicitly compassionate and particularly aggressive commitment to humanitarian intervention as an auxiliary aim. Intervening compassionately on behalf of refugees and other victims of state repression is said to be an indirect way of fighting terrorism and the rogue regimes that sponsor it. “Our creed is to intervene early and intervene often, if that is what it takes to reduce suffering and thwart terror.”[66] In this context, aims of humanitarian intervention are not treated as an independent just causes for the deployment of armed forces abroad. Instead, such aims are championed as secondary just causes that contribute to the overarching aim of preventive self-defense against terrorism. Accordingly, goals of humanitarian intervention have been invoked as contributing just causes for the otherwise defensive U.S.-led GWOT campaigns in both Afghanistan and Iraq. Indeed, given the ab