A Most Commendable Subject: Justice after War

In: Jus Post Bellum
Author: Brian Orend
Free access

The achievement of justice in the aftermath of war is fragile, fraught with risk, and historically unlikely. Yet all wars do eventually come to an end, whether owing to: clear victory/loss; stalemate and exhaustion; change of government or change of heart; change of generations; and/or bankruptcy of resources. While the odds against success seem steep, what choice do we have – given the inevitable denouement – except to ask ourselves how should this war end? It’s a typical scenario with warfare in general: it’s rough business; and, as we say in Canada, ‘tough sledding.’ Yet necessity impels us to wrestle with the complexities of the sub-optimal situation, and try to steer it in a better, rather than worse, direction. The rub concerns which direction is which, and to whom.

This volume advances our thinking powerfully in connection with three inescapable post-war ingredients: restraint (both in fighting and in war settlements); stabilization (as there’s no peace without a reliable and well-planned dampening-down of the violence); and peace (transitioning hopefully, of course, from the ‘negative peace’ of cessation of hostilities to a more complex and contested – yet more enduring and just – scenario of ‘positive peace’, wherein the former belligerents are now genuinely assured about non-war between them and can move on progressively with their lives). I’ll let the excellent essays speak for themselves about these ideas, as they analyze and synthesize crucial concepts, trenchant facts, and vital values, and apply them to such topical cases as Afghanistan, Bosnia, Colombia, and Iraq. I’ll devote my own brief space here to arguing in favour of the importance of the overall subject of post-war justice (pwj).

No compelling contemporary account of armed conflict can avoid grappling with how wars end, with how they should transition from mass political violence into a solid, decent, durable and liveable peace. Still, however, one can encounter lingering resistance to such an observation, from at least two major standpoints. The first is more moderate, and is from a perspective open to the claims of just war theory (jwt) and to the laws of armed conflict (loac) – such as The Hague and Geneva Conventions – which share much in common with it. This perspective is that justice in the aftermath of war (or ‘jus post bellum’) is very limited, and really only an adjunct to the jus ad bellum, which is to say the rules and norms designed to guide decision-makers regarding the original outbreak of war. The second objection is more sweeping and radical. It comes from the perspective of political realism, and is utterly skeptical of any talk, or possibility, of justice in the aftermath of war.

Objection 1: From Traditional jwt, the ‘Mere Adjunct Thesis’

Of the comparatively few historical thinkers who took seriously the possibility of jus post bellum, most of them contented themselves with the claim (which stretches back to Aristotle) that ‘well, post-war justice consists in achieving the just cause which triggered the war; and, if that can’t be had, the settlement is not going to be just – period.’ I label this the ‘mere adjunct thesis’: that jus post bellum is merely a portion or corollary of jus ad bellum, and simply consists in realizing the just cause for which the war rightly began (if such there were). This tidy proposition was the standard jwt view for the longest time, resulting amongst other things in a conviction that there exist only the first two categories of jus ad bellum and jus in bello (i.e., the rules of decent conduct during war) and there’s no such thing as a third category of jus post bellum. One still sometimes today encounters such a view.

This traditional view seems decreasing in frequency, perhaps emphasizing the decline in traditionalist jwt versus more contemporary, so-called revisionist forms. For, contemporary just war theorists point out that even something as basic as a war crimes trial isn’t clearly called for by the ‘mere adjunct thesis.’ Yet most international lawyers would insist that war crimes trials are among the most rudimentary requirements for any plausible conception of pwj. Moreover, the traditional ‘mere adjunct’ view simply ignores a whole range of other pressing and complicated problems posed by the aftermath of today’s conflicts. Some of these include:

  1. If a regime committed aggression to start the war, and (even though it may have lost the war) it remains in power at the end, should it be left in power, or forced to give it up? Why or not?
  2. If, alternatively, such an aggressive regime was destroyed during the course of the war, who is now responsible for re-constituting the government within that society? The local population only? But what if there are severe internal divisions amongst them? The war winners? But what if they want to leave – or, rather, to engage in self-serving, ‘neo-imperialist’ tinkering? Or should it be the international community in general? A complex kind of partnership amongst all? How would that actually work?
  3. Societies have to re-build after war. Who is mainly, or exclusively, responsible for such? Where to get those necessary resources? Who decides on distribution, and priorities for re-building?
  4. May we force countries to de-militarize, and/or give up territory, in the aftermath of war? Re-drawing borders can, after all, alter the entire course of history for many peoples.
  5. What steps should we take to ensure that a peace deal, once agreed to, actually gets observed? How should we handle any back-sliding or disobedience in that regard?

The traditional ‘mere adjunct’ doctrine seems all but empty, and completely unhelpful, in comparison even to this quick enumeration of five very real, and very substantial, post-war issues. A much fuller account of pwj appears mandated. And not merely for the sake of theoretical comprehensiveness, or greater completeness in our understanding of warfare. The other reason for the huge growth of recent interest in jus post bellum involves all the practical, real-world difficulties, over the past 20–30 years, of trying to achieve justice after war, in a smart and stable way, be it in Afghanistan, Bosnia, Colombia, Congo, Crimea, Croatia, Iraq, Libya, Nepal, Rwanda, Serbia, or (South) Sudan. Or indeed, eventually – hopefully sooner rather than later – in such dreadful on-going conflicts as Syria and Yemen. One of the most trenchant truths about warfare, historically, is that when wars are wrapped up badly, they sow the seeds of future wars. This is graphically depicted in the relationship, say, between wwi (1914–18) and wwii (1939–45) and between Iraq 1 (1991) and Iraq 2 (2003).

Having an account of jus post bellum which goes beyond the ‘mere adjunct’ thesis also allows jwt/loac to respond, in a satisfying way, to one of pacifism’s most provocative challenges: that jwt/loac are ‘too complacent’ about the set-up of the international system, and do nothing to try to improve things about it, such that wars don’t break out as often. It becomes quite easy to ridicule traditional jwt/loac in this regard: they sit on their hands (so to speak) until yet another war threatens to break out, then they dust off their precious lists of rules, see if they apply or not, and then… leave the matter at that! A more robust theory of jus post bellum offers the possibility of a substantial bridge between jwt/loac and pacifism in this regard – and, indeed, to realism, too, seeing as how it must rationally concern itself with the very real threat of bad war settlements igniting second, and costlier, wars.

Objection 2: From Realism, that ‘justice after war’ Doesn’t Exist

Realism, of course, refers generally to the influential foreign policy doctrine according to which morality and justice either simply do not motivate belligerents before, during, and after war (as a matter of harsh fact about people and the world) and/or should not so motivate, because the pursuit of ideals of morality, legality, and justice may lead to substantial strategic mistakes regarding the sober calculation and pursuit of one’s long-term self-interest, the only thing which is ‘really real’ in the rough-and-tumble world of both politics and armed conflict. The never-ending quest for primacy, or at least protection from decline and doing as best one can in the context, is the only thing of salience in the aftermath of war.

Now, we shouldn’t confuse the admitted difficulty and rarity of achieving post-war justice with its literal impossibility. It’s one thing to note where a great many historical peace settlements went wrong; quite another to say that the pursuit of pwj is a wrong-headed ‘category mistake’ which confounds apples and oranges. Most people, after all, speak both meaningfully and persuasively, e.g., when they contrast the harshly retributive terms of the post-WWI Treaty of Versailles with the more rehabilitative settlement post-WWII, in particular as involving The Marshall Plan of generous economic aid and reconstruction. When people describe the varied elements in, and note the manifestly different outcomes of, both these war settlements, such people aren’t failing to understand anything: they are making reasonable claims and substantial observations about the aftermath of conflict. One might not agree, or wish to delete or add particular aspects; yet it’s far too easy – perhaps bordering on arrogant dismissiveness – to pretend that such people simply don’t grasp reality, which is that nothing is either possible or advisable in connection with justice after war ends.

Many realists will proceed to tell us that all that truly matters, post-war, is the restoration of security and the cessation of violence – and those with the preponderance of power in war’s aftermath are best able to deliver on that. All ‘fine talk of justice’, as Thucydides would say, is mere wishful thinking which must be set aside. Two things, by way of reply: first, physical security is also a value – a human right, in fact – and thus a component not merely of realism but also of jwt and international law. Again: there are shared concerns; and there’s potential for important over-lap amongst the major theories regarding armed conflict.

Second, while it’s admittedly true that many people on the ground, in the immediate post-war moment, can seem all-too-happy merely with the cessation of violence, it’s a clear recent phenomenon that, once some stability has been achieved for a while, most communities – ranging from Bosnia to Rwanda, from Nepal to Serbia – soon ask themselves sharp questions about things like war crimes trials (versus, say, amnesties) and whether in retrospect enough was done not merely for peace but for justice. The realist does have a point about the substantial importance of post-war security, but so too does jwt/loac, over the long-term, about there being real evidence regarding ‘no justice, no peace.’ Or, at the very least, that total insensitivity to issues of justice can undermine the perceived legitimacy, and thus stability and endurance, of any post-war settlement. Realists, as rational choosers, need to confront the proper place of aspects of justice within a secure, and best-chosen, option for the aftermath of conflict.

And realists have problems of their own to confront, should they totally doubt the need for jus post bellum. For, failure to pursue pwj is to allow unconstrained war termination. And to allow unconstrained war termination is, notoriously and infamously, to allow the winner to enjoy the spoils of war. This is dangerously permissive, since winners have been known to exact peace terms which are draconian and vengeful. The Treaty of Versailles, of course, is often mentioned in this connection. And failure to regulate war termination probably prolongs fighting on the ground. Since they have few assurances, or firm expectations, regarding the nature of the settlement, belligerents will be sorely tempted to keep using force to jockey for position.

Lastly, while it may seem tempting to opt for unconstrained war termination – especially from the perspective of those more powerful, and/or who may have won their wars – the more considered reality is that jus post bellum principles can provide not merely protection for the losers, but also guidance for the winners, and limit the length and magnitude of claims and burdens upon them. It’s just better, and clearer, for everyone, to strive to construct a genuine and detailed theory of jus post bellum, as we’ve seen both with the jus ad bellum and the jus in bello. And the detail should be at least as equal to that within the latter two doctrines, as the issues and choices within pwj are no less complex and multi-faceted.

Conclusion: Core versus Periphery, and pwj as Ever-Evolving

We are nowhere done with the construction of jus post bellum. The situation right now is, instead, perhaps analogous to Winston Churchill’s immortal remarks (here paraphrased) upon hearing of America’s late 1941 entry into wwii, following Japan’s Pearl Harbor attack: ‘This is not the end of the war. This isn’t even the beginning of the end to the war. But it is, perhaps, the end of the beginning.’ We now all know about pwj and are persuaded, unlike our historical counterparts, of its unavoidable and far-reaching importance. The issue now deals with the pursuit of its fullest and best development. Jus post bellum is a protean discourse now experiencing yearly development in a way quite like how, e.g., new weapons technology sparks on-going jus in bello reforms, as well as how the move towards more asymmetric forms of conflict has challenged the growth and understanding of the traditionally state-centric jus ad bellum. And jus post bellum remains fuzzy at its far edges, and can bleed into more controversial, large-scale issues of transitional justice in particular, and, more generally, towards a deep debate regarding the ultimate components of political legitimacy itself and what we mean by a society which is at least minimally just, having the right to exist and endure without violent challenge.

But, towards the centre of pwj, there’s been enormous recent progress, and quite substantial agreement, that things like cessation of hostilities, exchange of prisoners-of-war, proportionality and publicity in settlements, some kind of commitment to post-war accountability, measures of trust-building and demilitarization, and practical plans for basic physical-, social-, and economic reconstruction are called for in nearly every single case of conflict aftermath – with, of course, the details crucially depending on the facts on the ground and the context of the situation and its likely potential. Such core jus post bellum norms and understandings are light-years beyond the traditional, stale and sweeping, claims regarding winners-and-spoils, and/or the impossibility of pwj, and/or the lazy notion we need only concern ourselves with the original just cause and can pretend that none of the intervening events have mattered.

We can look forward, with excitement and expectation, to the further and fuller development of jus post bellum, now and into the future, and not just in connection with physical or kinetic conflict but also to analogous questions about cyberwar and the aftermath of other, increasingly prevalent, forms of advanced technology conflict. War, and thus its aftermath, are ever-evolving, and our concepts and values need to keep pace. This volume is infused with that spirit.

Jus Post Bellum

Restraint, Stabilisation and Peace

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