Refining
Jus Post Bellum
Lieutenant
Camilla Bosanquet, USCG
Philosophy
Department,
Modern warfare inflicts such damage and casualties that
post-conflict peace efforts require nothing short of a massive
undertaking. To this end, experts now
assert a need for overarching principles to guide post-war operations toward a
just and lasting peace. More than merely
a set of post-conflict tactics, this guidance should serve to delineate post bellum moral obligations imposed
upon, at a minimum, parties to conflict.
This paper will attempt, first, to survey major contributions to jus
post bellum. Second, it will
critique recent, disjointed efforts to expand the category. The historical development of jus ad
bellum and jus in
Introduction
Speaking before a Carnegie Council event in 2004, Michael Walzer explicated the fundamental precepts of Just War Theory. Rather than merely reiterating its component criteria, with which so many are now familiar, Walzer provided a defense of the philosophy. Just War Theory, he explained, facilitates systematic moral discourse on the subject of war. This moral discourse may take the form of rationalization, or criticism, of particular decisions and actions associated with specific conflicts. Furthermore, and perhaps most significantly, the tradition serves to limit the instances in which resort to armed conflict may be justified.
We must place appropriate emphasis on this last point. As Walzer himself acknowledges, “we don’t expect foreign policy to be dictated by morality; we expect it to be constrained by morality.”[1] For the realist, self-interest determines policy; Just War Theory serves to temper otherwise self-interested decisions (and subsequent actions) by reference to, and debate within the context of, overarching principles. As well it should.
But many now argue that Just War Theory is deficient; it
requires a third component to round out ethical discourse and complete the set
of moral guidelines for foreign policy.
This missing perspective, jus post bellum, when taken together
with jus ad bellum and jus in
Why the discordance? Those arguing their respective cases for the inclusion of this or that element within this emerging third category of Just War Theory certainly are capable academics. However, the interdisciplinary task of developing a framework for any post-conflict phase is a complex and complicated endeavor, especially when a variety of talented individuals each contribute their unique perspective and expertise to the discussion. As testament to this, myriad commentators regularly contribute opinion and editorial columns proposing “the way forward” in conflict situations around the globe, independent of any philosophical development of jus post bellum theory, proper.
Certainly the cacophony of voices should not dissuade us from delving into the project of refining jus post bellum. But I argue that a distinction must be drawn between philosophical principles of jus post bellum and the corresponding, particular actions required to, in United Nations-speak, “operationalize” those principles. We should not forget that Just War Theory serves to facilitate moral discourse, guide and constrain otherwise self-interested policy and action, and limit those situations in which resort to armed conflict may be justified. The challenge for the just war theorist, then, is not to list specific plans of action prior to developing the guidelines, but to develop universal jus post bellum principles which complement these aforementioned fundamental just war precepts.
One final note before launching into our discussion of jus post bellum: just war theorists regularly interchange two distinct functions of the theory. On the one hand, Just War Theory serves as “an appropriate set of principles of justice”[2] to be used in guiding operations leading up to and within (and, as argued herein, following) a particular war. In this way, the philosophy orients action. On the other hand, Just War Theory “[functions] as universal moral standards against which state behavior can, and ought, to be publicly evaluated according to standards of evidence, reasonableness, and cogency.”[3] Therefore, the philosophy also facilitates judgment-making concerning the morality of particular wars. These two are closely related. Just War Theory, then, serves both functions: it provides the standards by which actions will be evaluated, while also providing a framework by which those actions may be, in advance of any criticism, considered and decided.
A brief history of jus post bellum
Recognized as the first to suggest clearly defined jus post bellum principles, Professor Michael Schuck wrote a short piece on the topic for Christian Century in 1994.[4] Professor Schuck therein proposed three jus post bellum principles, namely: repentance, honorable surrender, and restoration. He clearly offered these principles, in his words, “as a start.” Subsequent thinkers, as we will see, have in fact taken the opportunity to elaborate upon Schuck’s work. However, I believe that Schuck initiated the discussion quite intelligently.
JPB. 1 Schuck 1994
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1. repentance |
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2. honorable
surrender |
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3.
restoration |
Professor Schuck understood the nuance between a principle of action and action, itself. By proffering “repentance, honorable surrender, and restoration,” he shrewdly erected a framework within which particular actions and attitudes might be considered or required. Humility, sensitivity, and remorse could facilitate post-conflict healing, for example, within Schuck’s “principle of repentance.” Implicit in Schuck’s “principle of honorable surrender” is the contractual protection of the rights of the vanquished and the necessity for demonstrations of respect for former combatants. Finally, the “principle of restoration” may require victors to return to areas of combat and remove instruments of war, such as landmines. Potentially, the moral debate could extend the restoration principle to require victors to “assist in the repair of the social infrastructure.” Consideration of the overarching principles, then, results in the generation of potential moral obligations.
Arguably more widely read than the Schuck article, Brian Orend’s essay on jus post bellum appeared, six years later, in the Journal of Social Philosophy.[5] As with Schuck, Orend developed guiding principles for post bellum initiatives. He ultimately identified five formal criteria: just cause for termination, right intention, public declaration by legitimate authority, discrimination, and proportionality. To truly understand these criteria, however, the reader must pay close attention to Orend’s precedent propositions regarding the just settlement of conflict.
Orend argued that “consideration of the justice of the end of a particular war can begin only from a firm grasp of the just aims of a just war.”[6] He next acknowledged that a discussion of just ends presupposes that the unjust aggressor has been vanquished. Orend dismissed the literal restoration of the status quo ante bellum as a potential just objective of war; he instead deferred to an observation made by Michael Walzer, that the aim must include “a more secure and more just state of affairs than existed prior to the war.”[7] Specifically, Orend contended that this necessarily requires “the vindication of the fundamental rights of political communities, ultimately on behalf of the human rights of their citizens.”[8]
What does this vindication entail? Orend grouped his specific recommendations within three propositions. First, the aggression must be reversed. This includes eliminating “the unjust gains from aggression” and “re-establishing the integrity of the victim of aggression as a rights-bearing political community.”[9] Second, the aggressor must be punished. Orend recommended both compensation of the victim and execution of war crimes trials. Finally, future aggression, on the part of the nation in question or any other potential aggressor, must be deterred. Orend herein proposed “some demilitarization and political rehabilitation.”[10]
JPB. 2 Orend 2000
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1. just cause
for termination |
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2. right
intention |
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3. public declaration by legitimate authority |
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4. discrimination |
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5. proportionality |
As aforementioned, these propositions pave the way for Orend
to more fully develop his list of jus post bellum principles. Orend carefully utilized established just war
terminology to frame these principles and related the utility of each to the
overall project of Just War Theory, i.e. the development of a framework by
which the morality of actions within a conflict situation may be judged and the
delineation of referential standards to which we may orient our warfare
operations. As with jus ad bellum
and jus in
The “reasonable vindication of those rights whose violation grounded the resort to war in the first place” underlies Orend’s initial jus post bellum principle, that of “just cause for termination.”[11] Although primarily corresponding to Orend’s first proposition, that of the reversal of aggression, this principle also includes other definitive elements: surrender of the aggressor, cessation of hostilities, and, notably, submission to the imposition of punishment. Such submission may consist of, as reasonable, war crimes trials, compensation, and rehabilitation; these latter elements are clearly contained in Orend’s second and third propositions. Related to this first principle, Orend’s third principle straight-forwardly requires “public declaration [of the terms of peace] by legitimate authority.”
Orend’s second principle is that of “right intention.” As with “just cause,” participants must remain focused on the objective. But what is implied, perhaps unintentionally, goes beyond simple goal orientation. “Right intention” suggests an internal ordering, perhaps an allusion to morality in its simplest terms. One can not help but think of the approach John Rawls espoused: justice as fairness. This second principle hints at this concept of fairness; not only did Orend explicitly rule out revenge “as an animating force,” but he also argues that “the just state in question must commit itself to symmetry and equal application with regard to the investigation and prosecution of any jus in bello war crimes.”[12] Taken one step further, I believe that Orend’s principle of “right intention” echoes Schuck’s “principle of repentance.” Right intention could entail the humility, sensitivity, and remorse, inter alia, required in the Schuck articulation.
Explication of both “discrimination” and “proportionality,” the final two principles, further demonstrates how Orend’s thought may mirror Schuck’s. Orend expressed concern that “undue and unfair hardship [ought] not to be brought upon the civilian population in particular.” This, along with a subsequent acknowledgment that “the people of the defeated Aggressor never forfeit their human rights,”[13] indicates that Orend and Schuck are on the same page. “The terms of peace,” Orend argued, “must be proportional to the end of reasonable rights vindication.”
But what of Orend’s mention of “demilitarization and political rehabilitation” or Schuck’s “principle of restoration,” including the “repair of the social infrastructure”[14] and the removal of instruments of war? We certainly must address these recommendations. However, before we do so, I should acknowledge that Orend expanded the jus post bellum debate in a substantial and thoughtful way. His delineation of five criteria appears to have subsumed the bulk of Schuck’s argument while adhering to the language and precepts of the just war tradition.
I offer this initial analysis of the work done by Schuck and Orend because, simply, what happens next in the discussion closely approaches Pandora’s-box proportions. In the hustle to coin phrases, phrase the question, and question the tradition, subsequent thinkers have added perspectives that seem to confuse the transcendence of principle with ordinary, non-transcendent, specific recommendations for action. Many place undue emphasis on assorted, particular proposals ranging from war crimes trials and reintegration of former combatants to free elections and the rebuilding of schools. To be fair, although some of the contributions fall short of enhancing and adding to “the explicitly ethical values and commitments of just war theory,”[15] per se, they nevertheless figure in related discussions of conflict resolution and peace-building.
Many of the ideas thrown into the ring are not necessarily novel, but they are valid and significant when discussing the moral responsibilities of post-conflict parties. So, then, if we are to make sense of these recommendations, it is necessary to distinguish specific recommendations from their related, and overarching, principles. Orend’s work serves as an excellent starting point; many subsequent proposals correspond to his principles. Beyond what is explicitly included in Orend’s initial formulation of jus post bellum, issues of restoration, reconstruction, and rehabilitation feature significantly in more recent deliberations and should not be ruled out as potential components of jus post bellum.
I would be remiss were I not to mention Orend’s 2002
revision of his own initial jus post bellum proposals. In an article published in Ethics and
International Affairs, Orend elaborated upon his “earlier draft,”[16]
clearly with input from and in response to comments made by Michael
Walzer. Orend therein expanded his
commentary regarding compensation of the victim, post-war discrimination
between a nation’s political and military elites and its civilian population,
rehabilitation of the aggressor nation, reconciliation, post-war trials for jus
ad bellum and jus in
JPB. 3 Orend 2002
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1. rights
vindication |
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2. publicity |
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3.
discrimination |
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4.
proportionality |
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5. punishment |
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6.
compensation |
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7.
rehabilitation |
Particularly noteworthy, Orend slightly changed the way in which he presented his own jus post bellum criteria. Specifically, the former principles entitled “just cause for termination” and “right intention” appear to have been subsumed by “rights vindication.” This has special significance in that the revision seems to minimize what was, perhaps unintentionally, formerly implied, i.e. an obligation for post-conflict parties to demonstrate humility and sensitivity. The principles of discrimination and proportionality remained, while Orend replaced “public declaration by legitimate authority” with the simplified term “publicity.” Finally, Orend amended his former criteria to include the principles of punishment, compensation, and rehabilitation.
Jus Post Bellum, expanded
Orend rightly points out that “the just goal of a just war, once won, must be a more secure and more just state of affairs than existed prior to the war.”[17] Walzer uses the expression “restoration-plus” to characterize this improved situation.[18] Most Just War theorists do agree that the circumstances which led to the war must be addressed in order for nations to implement an effective, just and lasting peace. Along these lines, moral theologian Kenneth R. Himes suggested, in 2002, an addendum to Schuck’s three principles. Similarly arguing that “the principle of restoration is inadequate,” Himes proposes a fourth principle, “that of establishing a civil society.”[19]
Interestingly, this fourth principle “[extends] the ‘basic infrastructure’ to include not just the material infrastructure of roads, electricity, and communication but the human infrastructure for peaceful communal life.”[20] Himes includes, within the context of improving this so-called human infrastructure, the organization of “police and judicial institutions” for the purpose of creating “the necessary social space … for men and women to begin the work of restoring a nation’s life.”[21] Such effort is necessary for the “protection of civil liberties and human rights,” critical to any peace process.
Himes advances the argument that jus post bellum requires more than merely positive post-conflict attitudes, the restoration of physical infrastructure, and the removal of instruments of war. Although Schuck did, under his principle of restoration, fleetingly consider “as a maximal requirement [the assistance of victors with] the repair of the social infrastructure,”[22] Himes contends that the moral obligation to address the dilemmas of post-conflict civil society should be an altogether separate principle from that of restoration. Justice, then, requires a comprehensive approach to address the myriad needs of societies struggling to recover from war. Himes acknowledges that detractors consider this sort of open-ended mission dangerous and have characterized such efforts as “nation-building.”
Despite the inherent costs involved, however, establishing civil society seems necessary “to increase stability and the chances for peace”[23] in post-conflict situations. The difficult task for the international community, then, is to skillfully assess the degree to which it might constructively participate in the repair or establishment of viable civil infrastructure in post-conflict societies. Concomitant to such assessment and subsequent action, these societies and the international community, together, must guard against the inadvertent development of attitudes of dependency or colonialism.
Assuming an altogether different approach, military ethicist Davida E. Kellogg proposes “that the meting out of punishment for crimes against humanity and war crimes, whether in international tribunals or in our own civil courts, courts-martial, or military tribunals, is in fact the natural, logical, and morally indispensable end stage of Just War.”[24] In a lengthy argument, Kellogg singularly pursues formal post-conflict judicial proceedings, i.e. war crimes trials, as essential to jus post bellum.
Although offering compelling arguments in favor of the importance of war crimes trials, Kellogg’s argument neglects other potential elements of jus post bellum. Kellogg exclusively equates jus post bellum with war crimes trials; as a result, she does not effectively expand the philosophy. Furthermore, she promotes a mechanism for, rather than a principle of, justice; in this way she obviously deviates from the structure of Just War Theory proper.
In contrast, Orend includes “punishment” and “compensation” as components of his revised jus post bellum principles, but he does not inordinately focus on either. Perhaps any argument favoring war crimes trials would be strengthened by similarly elevating punishment as a principle, ordering specific objectives under such principle. The ends delineated by Kellogg include, inter alia, public recognition and placement of blame, punishment of aggressors and war criminals, retribution, condemnation of evil, prevention of future aggression, and deterrence of other would-be aggressors. Arguably, each of these ends may contain an intrinsic good; however, it would be wrong to assume that the business of war crimes trials is a “one size fits all” endeavor. Societies must strive to consider what must, what ought, what may, and what can be done, given the unique circumstances of a specific society in the aftermath of a particular war.
As has already been explained in detail, Just War Theory
serves to both guide our moral discourse about war and inform our
decision-making with respect to operations leading to and within situations of
conflict. Just War Theory serves as a
framework, a system, a collection of principles. To judge the “just-ness” of a particular
conflict, all of the component principles of jus ad bellum and jus in
The decision to delay, or forego, the establishment of war crimes trials should not, in and of itself, serve as a determining factor in judging the nature of post-war efforts. Just as Augustine ultimately considered warfare a “lamentable necessity,”[25] so, too, we might have to allow that successful and timely transitions to peace may require forbearance in seeking appropriate punishment for certain individuals critical to the permanent cessation of hostilities. This extraordinarily difficult decision must, no doubt, depend upon the nature of the atrocities or crimes committed and include significant input from victimized parties.
This view is not relativistic, it is realistic. Just War Theory, in fact, is not about extremes or ideals; if anything, it concerns what is lamentably necessary and what should be forbidden. While it may be true that “justice is rarely served by ignoring injustice,”[26] ignorance is precisely the opposite of that which is required. Rather, stakeholders benefit from both serious introspection and consideration of the potential ramifications of all post-conflict judicial options. Furthermore, in the eyes of someone unaffected by the horrors of war, insisting upon victims holding out in the interest of bringing criminals to justice may appear as a moral imperative, but in the face of the option to end a conflict sooner rather than later, another axiom also holds true, that “the perfect is the enemy of the good.”
Recognizing the tension between justice and peace, the challenge becomes one of supporting victims of aggression in their quest to make decisions concerning what manner and degree of justice they require. These decisions should ultimately facilitate healing and a lasting peace; third parties best contribute by encouraging victims to focus on these goals. Practically, third parties may helpfully provide counsel to victims so as to assist them in pursuing an appropriate amount of justice; seeking too little compensation and punishment (shortchanging the injured parties) or too much (exacting revenge vice justice) equally may undermine the peace process.
Asserting that justice must “be treated as a critical dimension of any successful post bellum dynamic to further post bellum healing,” former United States Navy chaplain Louis V. Iasiello included it among his seven potential criteria to “set the moral parameters of behavior in the post-combat phase of war.”[27] However, like Orend and others, Iasiello does not place inordinate weight on the prosecution of war crimes trials per se. Rather, Iasiello leaves the question of justice open for consideration after asserting his view that any formal jus post bellum criteria must include justice as an integral component of “a just and lasting peace.”
Furthermore, Iasiello argues that post bellum justice should fall under the jurisdiction of a supra-national entity; “the more international in nature the orchestration, administration, and prosecution of justice, the more potential for real justice and not a victor’s justice, and the more probable the acceptance of the tribunal’s judgments by both the defeated nation and the world community at large.”[28] This is an important point, but incredibly controversial. While many view the empowerment of an international court the logical, and inevitable, outcome of ever-expanding regional and global cooperation, some still take exception to the concept. These hold-outs maintain that conventions and treaties are no more than voluntary agreements, upheld by the good will of the constituent nation-states. These signatories reinforce and maintain their contractual obligations by the force of their own political power; they argue that any accession of authority to a regional or supranational judicial entity would constitute nothing less than a diminution of their sovereignty. Iasiello seems to raise the issue but not force it; he clearly posits the issue of fairness at the center of his rationale for leaving justice to an international court.
JPB. 4 Iasiello 2004
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1. a healing
mind-set |
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2. just
restoration |
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3. safeguarding
the innocent |
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4. respect
for the environment |
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5. post
bellum justice |
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6. warrior
transition |
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7. study of
the lessons of war |
As aforementioned, Iasiello offers more than merely an argument in favor of war crimes trials. His list of criteria starts with the principle of “a healing mind-set.” Citing Plato (“[fight] as those who intend someday to be reconciled”), Iasiello obviously conjoins Schuck’s principles of repentance and honorable surrender under this first principle. He echoes Schuck by advocating that it would be “constructive if both the victors and the defeated entered this post-conflict phase in a spirit of regret, conciliation, humility, and possibly contrition.”[29] Iasiello recognizes that failure to demonstrate appropriate attitudes, especially during the volatile initial post-conflict phase, may “fuel hard feelings and thus impede the healing process.” Further, even “celebrations meant to convey the profound thanks of a grateful nation to its troops might translate into the unintended consequence of prolonging hostilities or fueling insurgencies.”[30]
Iasiello next proposes “just restoration.” His explication develops the principle to a significantly greater degree than Schuck’s minimal formulation and appears also to take into consideration those arguments put forward by Himes concerning the establishment of a civil society. Emphasizing the obligation of victors “to ensure the security and stabilization of a defeated nation,” Iasiello describes three stages of just restoration: protectorship, partnership, and ownership. Protectorship encompasses efforts to provide for the most basic requirements of a society during the immediate aftermath of conflict; these include the lower-tier needs articulated in the classic “hierarchy of needs” political science model constructed by Abraham Maslow, e.g. food, water, clothing, medicine, shelter, and security. Some would argue that “resolving the security dilemma”[31] ranks first in significance among the many competing demands; the argument proceeds from questioning the practicality of attempting distribution of emergency goods and services in unstable, hostile conditions. Effective implementation of security measures improves the likelihood for the successful repair and reconstruction of critical physical infrastructure, administration of refugee and relief centers, and removal of instruments of war.
Although Iasiello argues that “victors retain primary responsibility for the planning and execution of this protectorship phase,”[32] he also stipulates that members of the vanquished society must be included. Certainly this is politically prudent, but it additionally facilitates the transition to Iasiello’s second phase, partnership. In this phase, military leaders and civilian authorities work together to restore civil infrastructure, e.g. first response systems, schools, and civic centers. Iasiello also suggests that “rebuilding the economy, establishing a credible judicial system, and reestablishing transportation and communications systems” appropriately fall under this partnership phase. Finally, victors and vanquished should do the hard work to implement “an interim political authority,” in anticipation of Iasiello’s final stage, ownership.
Iasiello defines ownership as that stage in which “sovereignty is returned to a once-defeated people and former enemies become allies.”[33] The objective characteristics of this stage include “reentry [of the formerly defeated nation] into the community of nations” and that “all aspects of political, economic, and social life are returned to the control of the indigenous population.”[34]
Several of the principles proposed by Iasiello, specifically “safeguarding the innocent,” “respect for the environment,” and “warrior transition,” contain a common thread. These principles respect the inherent human rights of individuals within the vanquished society. Iasiello contends that any successful post-war transition from chaos to peace necessarily entails protecting the vulnerable; this category especially includes children, women, the elderly and the disabled. But more broadly, people living within the borders of the defeated nation have rights to health and well-being. This necessarily requires access to natural resources, a safe and relatively unpolluted (or reasonably restored) environment, and assistance in overcoming the trauma of warfare toward the resumption of peacetime activities and occupations. Obviously, these moral obligations incur substantial costs and the practical question of who is responsible for bearing them is not insignificant.
Finally, Iasiello proposes that the final stage of any jus post bellum phase must include reflection upon the lessons of war. Such consideration of decisions to use force “may help nations avert future conflict and build a culture of peace.”[35] Certainly this is an advisable, reasonable, and logical practice, but to what degree does this obligation adhere to the purported precepts of Just War Theory? The overarching theory contains moral principles which facilitate our judgment- and decision-making regarding war; while the lessons learned may serve to inform deliberation concerning just cause or proportionality, it does not stand to reason that a mandatory requirement to study conflict serves as a principle of judgment- or decision-making.
Furthermore, is it superfluous to formally require a
self-critical feedback mechanism when it is commonplace for scholastic
journals, military reviews, government panels, the media, and others to perform
such task? Although studying the lessons
of war may be too specific an action to merit inclusion as a principle, per
se, it may serve Just War Theory to consider whether such reflection and
critique is implied or presumed within the tradition. Just War theorists already do acknowledge
that their work is malleable, shaped by deliberation; reference to the lessons
of specific conflicts typically fuels debate concerning the limits of
relatively established jus ad bellum and jus in
What would Walzer say?
Conspicuously reserved concerning jus post bellum proper, Michael Walzer has published very little on the subject to date. But this is not to say that he has completely withheld his views concerning the ends of war or post-conflict justice. In fact, he devoted a chapter to “War’s Ends, and the Importance of Winning” in his seminal work Just and Unjust Wars.[36] Furthermore, Walzer folded insights concerning jus post bellum into a recent Dissent editorial[37] and has also commented publicly.[38] These observations do not seem, however, definitive or complete. “While [Walzer] does contribute to the sparse jus post bellum literature,” observes Orend, “there is no denying that his account remains short, spotty and unsatisfying.”[39]
JPB. 5 Walzer 1977 (“War’s Ends”)
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|
Walzer stresses “the right of nations, even of enemy nations, to continued national existence and, except in extreme circumstances, to the political prerogatives of nationality.”[40] This stems from “Walzer’s ‘legalist paradigm,’ in which political communities derive their rights from the consent of their individual citizens.”[41] These individuals, goes the argument, have a right to organize their polities as they choose. Gary J. Bass, writing in Philosophy and Public Affairs on the topic of jus post bellum, notes that “Walzer’s emphasis on individualism, sovereignty, and territorial integrity leads … to a presumption that victorious states should seek to limit their occupation of conquered countries to the shortest time possible.”[42] Furthermore, Walzer asserts that occupying forces must adhere to principles of accountability, transparency, and, where possible, consent of the occupied when engaging in post-war restorative and reconstructive efforts.[43] After all, “enemy states must be treated, morally as well as strategically, as future partners in some sort of international order.”[44]
JPB. 6 Walzer 2003 (Heinrich Boll Foundation)
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|
Walzer’s thoughts of 2003 are not dissimilar to those he expressed in 1977. First and foremost, he continues to emphasize the right of nations to sovereignty; in his view, political reconstruction may follow extreme cases such as situations of repeated aggression or mass murder but should otherwise be limited. Walzer asserts a need for international cooperation in situations of occupation; he clearly believes that international cooperation lends greater “moral authority” to post-war occupations. Additionally, any such limited occupations, whether composed of a single power or a multi-national force, must provide security for the vanquished and maintenance of law and order within the occupied territory.
As for war crimes trials, particularly “the punishment of the political leaders who launched the aggression,” Walzer acknowledges that while “there are good reasons to aim for that,” it must not be a condition of conflict termination should it extend warfare “and increase its costs.”[45] Better to focus on exacting reparations for the victims and imposing constraints on the future war-making capacity of the aggressor state.[46] These preventative measures may include, as appropriate to the particular circumstances, “disengagement, demilitarization, arms control, external arbitration, and so on.”[47] For those who argue that justice requires more than reparations for the victim and preventative constraints on the aggressor, Walzer counters that “military defeat is always punishing … the preventative measures are also penalties, indeed, collective penalties, insofar as they involve a certain derogation of state sovereignty.”[48]
JPB. 7 Walzer 2004 (Carnegie Council)
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The context of the statements Walzer provided during his
Carnegie Council interview concerned the continued occupancy of
JPB. 8 Walzer 2004 (Dissent)
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Finally, although primarily providing us with a reiteration of his views, Walzer peppers his Dissent article with strong opinions about the mishandling of post-war efforts in Iraq. “We don’t seem to have thought much about this process in advance of the war,” Walzer writes, “surely occupying powers are morally bound to think seriously about what they are going to do in someone else’s country.” As in his other written work and public statements, Walzer herein emphasizes the need for international cooperation concerning the sharing of effort, responsibility, and costs in post-war operations.
Conclusions
In the end, jus post bellum offers a prism through which we may critique the action, or inaction, of parties post-conflict. As with other Just War stages, parties to conflict could potentially utilize jus post bellum principles to consider the morality of certain post-war initiatives, or the imperative of other related obligations, prior to their implementation. As Bass observes, “people who somehow manage to act decently before and during war are rewarded only by being required to act decently again afterward.”[49]
Walzer stresses that nations are morally obligated to plan for the post-conflict phase of any war. This responsibility is reflected within one element of what has come to be known as the “Powell Doctrine of Overwhelming Force.” It challenges political and military elites to consider, in advance of conflict engagement, whether or not they have developed “a plausible exit strategy to avoid endless entanglement.” General Colin Powell believed that a negative response to the question serves as sufficient cause to halt the forward advancement of war plans.
These assertions, made by both Powell and Walzer, charge us collectively and individually. Military officers, arguably, have an affirmative responsibility to remain actively engaged in contemplating national and international affairs. We derive this obligation from the public trust which we are expected to keep. We have a duty not only to uphold the Constitution, but to serve our fellow citizens as stewards of the assets which have been entrusted to our care. These assets include not only the financial and material, but also something incredibly precious: the personnel in our charge. The totality of circumstances, therefore, dictates that we not remain merely passive recipients of executive orders. We must contribute to dialogue regarding our specialty; we are obliged to participate in discussion regarding, as well as decision-making leading up to, conflict engagement and the conduct of warfare itself.
While our obvious and immediate duty is to that which falls under our purview, morality compels us to demonstrate respect for all parties to conflict, including victims and former belligerents alike. This is particularly the case regarding conflicts in which we have been active participants. Certainly most of us, as with the majority of the American collective, believe ourselves to be citizens of the world’s beneficent hegemonic power. We ascribe to ourselves an image of patriots fighting evil powers on behalf of peace, increasing global security in the flexing of our military might. But if our post-conflict objective truly is global peace and security, it follows that we must engage in jus post bellum thinking, planning, and operations.
As noted by one contemporary military observer, Andrew Bacevich, the “military is led by an officer corps that has evolved its own well-defined worldview and political agenda … [senior military leaders] aim not simply to execute policy; they want a large say in its formulation.”[50] Certainly senior military officers already do have a “large say” in jus ad bellum and jus in bello decision-making; the pressing challenge is for that same leadership to engage, aggressively, in jus post bellum efforts.
Having herein surveyed what others have said on the subject, we may be able to extrapolate refined jus post bellum criteria. The task is nothing to fear; indeed it presents a unique leadership opportunity to define the limits of that which may eventually impose moral constraints upon us. Furthermore, we may find ourselves in a better position to discern the degree to which the military must include post bellum considerations during conflict planning and execution phases. We could then discuss the obligations of military officers, at all levels, to assess the strengths of their individual commands in relation to contributing to post-war efforts. In essence, we may be able to determine the ways in which the military may contribute, particularly in situations of occupancy, to a successful exit strategy and, moreover, the establishment of an effective and lasting peace following the cessation of hostilities and a formal declaration of the terms of peace.
Having articulated the benefits of the project, I would like to offer a few proposals to refine the work of others. If Schuck suggested his principles “as a start,” then I offer my criteria “as a continuation” and recognize that further work will likely be required. Each criterion reflects or expands upon thoughts of others; I believe that this formulation of jus post bellum criteria goes some way toward bringing previous efforts into harmony. Consistent with the tradition, parties must adhere to all post bellum principles contained herein in order for their overall accomplishments to be considered just.
JPB. 9 Bosanquet 2007
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1. rights vindication 2. publicity 3. honorable intention 4. protection 5. rehabilitation 6. justice 7. restoration |
Any jus post bellum criteria must necessarily include some reference to the rationale for the initial resort to war. As Bass points out, “Jus post bellum is connected with jus ad bellum … in that the declared ends that justify a war – whether stopping genocide or preventing aggression – impose obligations on belligerent powers to try, even after the conclusion of the war, to bring about the desired outcome.”[51] Orend rightly asserts that the first principle must be that of rights vindication. Following from jus ad bellum principles of just cause and right intention, rights vindication requires a reversal of the aggression that prompted parties to resort to arms in self-defense or the defense of others.
Orend’s second jus post bellum criterion, publicity, is also necessary if we take into account the rights of the individual participants engaged in both the actual conflict and the larger political process. According to the liberal tradition, these persons confer their consent to the terms of peace through their duly appointed and authorized leadership. Implicit in the arrangement is a requirement of publicity; authorities have a responsibility to broadly communicate the terms of peace. Furthermore, this leadership must, as Walzer and others have pointed out, continue to act with transparency throughout the post bellum period. To this end, authorities should publicize, to the greatest extent practicable, proposed security, rehabilitation, justice, and restoration initiatives. Assuming citizens retain (or, in certain situations, have obtained) freedom of expression and press, such publicity should inform thought, discussion, and debate concerning said efforts. Furthermore, subsequent reflection and criticism should contribute to an initial, informal, and collective study of the lessons of war; formal studies, similar to those advocated by Iasiello, will likely follow.
Not to be overlooked, internal dispositions of post bellum parties play a significant role in solidifying the peace process. Schuck’s principle of repentance (including, inter alia, humility, sensitivity, and remorse) and Iasiello’s healing mindset both recommend the assumption of conciliatory attitudes; such approaches tend to build trust and cooperation between former belligerents. Parties must willingly and resolutely pursue their stated post bellum objectives, i.e. peace and security, with honorable intention. This honorable intention includes more than what some may argue are merely subjective attitudes; objectivity lies in proofs of action. In the short term, Schuck’s principle of honorable surrender (including the contractual protection of the human rights of the vanquished and demonstrations of respect for former combatants) serves as one such proof. Long term, limited occupation and refusal of material benefit, as Walzer suggests, serve as two additional proofs.
I agree that the aftermath of conflict necessitates the immediate implementation of security measures. Legitimate authorities assume, as Iasiello argues, an obligation of protectorship and are morally bound to care for persons in their charge. The larger issue of protection extends beyond human rights; the environment, as Iasiello additionally emphasizes, also requires protection and respect in this phase. In particular, water supplies and arable land may need rehabilitation. Furthermore, natural resources may require safeguarding both for future use by nationals and against illicit use by rogue elements aiming to undermine the peace process.
Rehabilitation can mark a transition (absent any relapse into conflict) from protection and stabilization operations toward the full restoration of peace, security, and sovereignty. By rehabilitation, I specifically include those efforts intended “to restore or bring [about] a condition of good health, ability to work, or productive activity.”[52] I agree it would be naïve to simply restore the status quo ante bellum; obviously, the underlying conditions which led to the conflict must be addressed. However, the vanquished are not necessarily entitled to wholesale improvements and victors should not be held to absolute obligations to provide such upgrades.
Occupying powers, preferably in cooperation and partnership with legitimate national authorities, should endeavor to rehabilitate political, economic, and civil systems in a timely way. This includes, as argued by Himes, Iasiello and others, a focus on the reconstruction of first response structures, schools, civic centers, and law enforcement, e.g. police, judicial, and penal institutions. Obviously, physical infrastructure will require post bellum reconstruction as well, e.g. communications and transportation systems. This infrastructure substantially contributes to the well-being of the nation as a whole; it facilitates not only the coordination and movement of supplies and personnel, but the long-term success of political, economic, and civil systems.
Third parties to political rehabilitative efforts best contribute by insisting, at a minimum, that parties to the peace process adhere to norms respecting human rights. Naturally, liberal societies will, and should, advocate free elections leading to a democratic government, but the jus post bellum principle of rehabilitation should not require, implicitly or explicitly, the installation of any specific political system. As Orend contends, the just objectives of conflict include the reversal of aggression, the punishment of the aggressor, and the deterrence of future aggression. Representative government should not be put into place as a punitive measure, nor can it serve as some kind of guarantee against future aggression.
What can contribute, perhaps most directly, to the diminution of capacity for future aggression, however, is demilitarization. This includes the demobilization and disarmament of military forces. Although concrete, demilitarization is not a simple task. Simply disbanding armed forces typically results in the proliferation of small arms and light weapons within the region and the return of former combatants to a society ill-equipped to offer employment opportunities. Demilitarization requires comprehensive planning and oversight, most likely on the part of multinational forces, and must balance the objective to prevent future aggression with any right the nation may claim to maintain defensive forces.
I believe demilitarization falls within the purview of post bellum justice; furthermore, I agree with Iasiello that the principle of post bellum justice should serve as a formal element of jus post bellum. Although the phraseology may seem awkward, perhaps even redundant, there is no better way to group such considerations as demilitarization, war crimes trials and punishment, reparations, and the public assignment of blame or condemnation. I agree with Orend that justice requires both discrimination and proportionality. I also believe parties to conflict should take into account the caution issued by Walzer: that justice may conflict with peace, extending war and increasing its costs. I argue that the principle of justice obliges post bellum parties to consider all available means for punishment and deterrence alongside the unique circumstances, needs, and objectives of both the vanquished and victimized.
Ultimately, jus post bellum should result in the restoration of sovereignty to rehabilitated nations and reinstatement of statehood within the larger global community. Occupying forces, in the end, must relinquish power to legitimate national authorities. The new government must assume complete ownership and function independently and effectively. I agree with Walzer that this condition of “restoration-plus” marks the final objective of jus post bellum, an improved, more stable and secure situation than that which existed prior to the conflict.
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