Would a U.S. war against Venezuela be just?

To all appearances, the United States is preparing for war with Venezuela.  For months now, American military forces have been blowing up Venezuelan boats said to be carrying drugs.  The U.S. has deployed a fleet of warships off the country’s coast.  President Trump has said that “this is war” and that “very soon we’re going to start doing it on land too,” and he has ordered the closure of airspace over Venezuela.  He has also declared that Nicolas Maduro’s “days are numbered” as president of Venezuela and ordered him to resign and leave the country.  And it has been reported that the administration is planning for a post-Maduro Venezuela.

What are the goals of, and rationale for, the conflict?  Trump cites Venezuela’s status as a source of drugs, criminals, and unwanted immigrants entering the United States.  Administration officials and Republicans in Congress routinely characterize Maduro’s regime as “narco-terrorist,” and they’ve long criticized the socialist dictator for the human rights violations and economic chaos that have plagued Venezuela.  The point of the conflict thus seems to be regime change, in the interest of punishing and deterring state sponsorship of the drug trade.

Yet the administration has sent mixed signals.  Trump has also denied that he is seeking regime change, as has Secretary of State Marco Rubio.  Trump’s controversial recent pardon of former Honduran president and convicted drug trafficker Juan Orlando Hernandez tells against a serious concern with punishing state sponsored drug trafficking.  Trump has also declined to say one way or the other about whether he would send ground troops into Venezuela, or to address just how far he would go in order to oust Maduro. 

Hence, whether the U.S. really does intend to go to war – and if so, what the point of the war would be – are murky at best.  So too is the legal basis of the war, and of the means used to fight it.  There has been no congressional authorization for such a war, though this is required by the Constitution.  True, modern U.S. presidents have not much respected the spirit of this restriction.  But they have at least still generally felt the need to get Congress to rubber stamp military actions they’ve already initiated or decided they wanted to carry out.  It is better if presidents continue at least partially and grudgingly to adhere to the letter of the law in this way, rather than setting a precedent for simply ignoring Congress altogether.

To be sure, the administration’s emphasis has been on the claim that the drug runners they have been targeting are “terrorists.”  And it seems that the administration is operating under the assumption that military attacks on these people are therefore legal given congressional authorization, after 9/11, for the use of military force against terrorists.  But as Andrew McCarthy has argued, such a defense is specious, because drug trafficking simply does not fit the definition of “terrorism” under federal law.  (And it is sheer sophistry to suggest, as some have, that drug trafficking counts as “terrorism” insofar as the drug problem has “terrorized” American families, brought “terror” to addicts, and so on.  These loose uses of the term “terror” are completely irrelevant to the question of the legal sense of the term.  You might as well argue that producers of crime thrillers and horror movies are “terrorists” insofar as they cause audiences to feel “terror.”)

There are other problems with the attacks on the boats.  In at least one case, it has been alleged that the boat targeted was actually a fishing boat rather than a drug-running boat.  In another and especially controversial case, it appears that survivors of an attack were killed in a second attack despite having been rendered harmless by the initial attack.  This is contrary to jus in bello just war criteria, and even some on the right-wing end of the political spectrum have judged it to be a war crime under U.S. law.

As this indicates, the situation is, to say the least, problematic from the point of view of just war theory.  Some readers might be surprised that I would think so, since a few months ago I argued in an article at Postliberal Order that military action against drug cartels could be just.  But there are several crucial differences between the sort of scenario I described there and what is going on now with respect to Venezuela.  First, the targets I had in view were not merely criminals guilty of running drugs, but violent thugs guilty of actions that really can plausibly be described as “terrorist,” such as political assassination and the murder of civilians as a means of securing control over territory.  Second, I was envisaging military action aimed at taking out the specific individuals carrying out or ordering such acts, rather than some expansive program of regime change.  Third, I noted that such action would have to be carried out using only morally acceptable means of warfare.  Fourth, I also noted that alternatives to military intervention would have to be tried first.

Let’s consider the current situation in light of the just war doctrine developed by thinkers like Thomas Aquinas, which holds that for military action to be justifiable, it must meet four criteria: first, it must be in the service of a just cause; second, it must be carried out by lawful authority; third, this authority must have the right intention; and fourth, the war must be fought using only right means.  Each of these calls for elaboration:

1. Just cause: Part of what this first criterion requires is that a war must be fought for a legitimate end.  As to what sort of end would be legitimate, the just war tradition came to hold that it could only be the defense of some right violated by the nation against which the war is fought.  Naturally, repelling aggression would be an example, since for one nation to aggress against another is for it to violate the rights of the victim nation.  But other aims too can count as the defense of a right, and in theory, even some of the ends sought by the Trump administration could count as the defense of a right.  For example, it can in principle be legitimate to fight a war in order to stop drug trafficking, since drug trafficking violates the rights of the nation into which drugs are being trafficked.  And it can in principle be legitimate to fight a war to liberate the people of a nation from an oppressive government, since such a government violates its own citizens’ rights.

The trouble is that having a legitimate end in view is only a necessary condition for having a just cause for war, not a sufficient condition.  The just cause condition includes other elements as well.  For one thing, going to war must be a proportionate response to the rights violation.  For example, suppose an enemy nation had killed a handful of American citizens.  It would be absurd to use this as a pretext to launch a full-scale war likely to result in tens of thousands of casualties on both sides.  That would be massively out of proportion to the harm being remedied.

There must also be reasonable hope for success.  War is extremely destructive and can easily spiral out of control, so that it should never be entered into without strong grounds for thinking that the desired outcome can be realized.  And it must be realized in a way that does not bring about even greater evils than the ones the war is a response to.

The war must also be fought only as a last resort.  That is to say, it must be clear that the ends the war is meant to secure cannot be realized short of war.

Finally, the “just cause” criterion requires not only that the goal of a war is just, but also that it must be known to be just.  That is to say, it’s not good enough if someone, somewhere might be able to cobble together some plausible rationale for the war.  The public authorities taking a nation to war must themselves actually have such a worked out rationale for it.

When all of these aspects of the “just cause” condition are considered, it is clear that the Trump administration has not met it, at least not yet.  For example, it has not shown that a regime change war is a proportionate response to the evils it seeks to remedy.  Indeed, some of the administration’s rhetoric seems clearly either uninformed or dishonest.  Homeland Security Secretary Kristi Noem has claimed that destroying the cocaine carried on Venezuelan drug boats has “saved hundreds of millions of lives.”  In reality, fewer than 30,000 people die of cocaine overdose in the U.S. each year, and most of this cocaine comes from countries other than Venezuela.  Some have also tried to connect Venezuela with the fentanyl trade, but in reality fentanyl is linked with China and Mexico rather than Venezuela (as even one of Trump’s closest political allies has emphasized). 

Nor is it clear that a regime change war would remedy rather than exacerbate some of the problems the administration is trying to address.  For example, such a war could generate a refugee crisis that would add to, rather than decrease, the number of immigrants trying to enter the U.S.  And as recent American military history has dramatically shown, attempts at regime change often yield results very different from those intended.

Nor has the administration made clear why actions short of war would not suffice to realize the ends it seeks to achieve.  Indeed, the administration has made no clear and coherent case at all for war with Venezuela (let alone a just war case for it), so that it can hardly be said that its cause for war is known to be just.

2. Lawful authority: As the just war tradition emphasizes, having a good end in view is by no means sufficient for a war’s being just.  For not everyone has the right to resort to war as a means to realize such an end.  In particular, private individuals do not have that right.  Only public authorities have it.

Now, in the American system, the power to authorize war lies with Congress.  That is why, as already noted, even presidents keen to act unilaterally often seek some kind of congressional approval, at least where large-scale or prolonged military actions are concerned.  For a president to make war altogether independently of Congress is thus contrary to the rule of law.  It is analogous to acting on his own behalf, as a private individual would do, rather than as an agent of the lawful public authority (which is what a president is when acting as commander-in-chief in a congressionally authorized war).  And as I noted above, it will not do to pretend that the administration’s actions against Venezuela are somehow legitimized by Congress’s authorization of military action against terrorists.

It seems clear, then, that the administration has also not met the second, “lawful authority” condition for a just war, at least not yet.

3. Right intention: The just war tradition insists that even when there is a just cause for war, and the justice of this cause is known, a war will still be unjust if this cause is not the true motivation for which the war is being fought.  For example, if there is a clear morally legitimate cause for a war, but the public authorities who publicly appeal to that cause in fact secretly have some other and illegitimate reason for going to war (such as the prospect of financial gain, or of personal glory) the war will be morally tainted.

In the present case, some have suggested that a motivation for war with Venezuela is to get access to its oil.  At least one GOP lawmaker has indicated as much, though others have cast doubt on this idea.  Given Trump’s extreme egotism, it is also not unreasonable to wonder whether he sees a war with Venezuela as a way to make his mark on history.  But that is speculation, and it would be unwise to put much emphasis on it given the points already made.  Even if we were to concede that there is no strong reason to doubt that a conflict with Venezuela would meet the “right intention” criterion for a just war, that does not change the fact that it has not been shown to meet the first two criteria.

4. Right means: Just war doctrine holds that even if fought for a just cause, by lawful authority, and with a right intention, a war can still be unjust if immoral means are deployed in waging it.  Among the requirements of this fourth condition, the one most relevant for present purposes is the imperative to avoid deliberate attacks on non-combatants.

The Trump administration’s dubious attempt to stretch the definition of “terrorism” to rationalize attacks on drug boats gives serious grounds for doubt about whether a war with Venezuela would meet this condition.  So too does the incident in which men already rendered helpless by one strike were deliberately killed in a follow-up attack.  Narcotics trafficking is gravely evil, but those engaged in it are not per se terrorists, nor are they in any other way relevantly like combatants in a military conflict.  To be sure, the paramilitary forces some drug cartels have made use of can plausibly be regarded as legitimate military targets, but it is sophistry to pretend that this entails that just anyone associated with drug running somehow counts as a combatant.  It is also true that a case can be made that drug kingpins are worthy of the death penalty, but what that would justify is execution after due process of law, not indiscriminate firing upon anyone suspected of involvement in the drug trade. 

Hence, if the Trump administration does not confine attacks to military targets and continues to blur the distinction between combatants and non-combatants, it is hard to see how a war with Venezuela could meet the fourth, “right means” criterion of just war doctrine.

Given the unique gravity of war and the potential unforeseen harms of even justifiable military actions, the burden of proof is always on those who want to go to war, not on those who recommend against doing so.  That burden can sometimes be met, but the Trump administration has so far failed to meet it.