After the Dust Settles: Reflections on Postwar Justice

Traditionally, just-war ethics tries to offer an answer to two distinct moral questions: when (if ever) is it morally permissible to start a war, and how should it be fought? For this specific purpose, just-war reasoning is divided into two parts. The jus ad bellum guides our moral thinking in initiating war; the jus in bello informs us on proper moral conduct during the hostilities. More recently, however, a number of authors have felt the need to add a third element to the just-war theory, that of the jus post bellum. A war, so it is argued, has a beginning, middle and end. There is no reason then why the termination and the longer term aftermath of the war should deserve less attention from a moral point of view. Managing the postwar period in an ethically proper fashion is as important as its just beginning and just conduct. The elaboration of this additional post bellum layer to the just-war theory is still very much in its initial, exploratory phase. A lot more needs to be said and done before the jus post bellum will reach a comparable degree of substance and sophistication to the two other just-war parts. However, this is exactly what two recently published books on the subject – Eric Patterson’s Ethics beyond War’s End and Larry May’s After War Ends: A Philosophical Perspective – aim to do.

The first cited volume is a collection of ten essays, all of which were originally written and presented by different contributors at a one-day conference at Georgetown University in April 2010 on the topic of jus post bellum. The host of the conference and also editor of the book, Eric Patterson, explains the need for such an initiative by pointing out that most postwar decision-making is done in a rather ad hoc fashion (p. 2). What is lacking is an overall moral framework taking into account considerations of order, justice and conciliation. The main objective of both the conference and the book was, then, to develop such a framework by extending ‘the just war tradition to late- and postconflict issues’ (pp. 3–4).

There is a general consensus among the different contributors that the ultimate aim of war should be peace. But what kind of peace are we talking about? We can only begin to understand our post bellum responsibilities if we have some prior idea of what it is exactly that we are pursuing. Mark Evans warns us that the notion of a just peace is at best an elusive ideal, from both a practical and a conceptual point of view. Traditionally just-war thinking favours a relativistic notion of peace: those deciding on the use of force should do so with the firm intention of creating a better – that is, a more just and lasting – peace. Just-war historian James Turner Johnson refers in his contribution, for instance, to St Augustine, who stresses the need to limit our ambitions to creating an earthly attainable (that is, an imperfect) kind of peace, a so-called tranquillitas ordinis (p. 21). So, those reflecting on pursuing a more just and lasting peace must constantly engage in a complex exercise of moral reasoning with the aim of finding the right balance between considerations of order and justice. Here, as the different contributions in this book illustrate, opinions diverge.

Michael Walzer, for instance, defends a more order-based conception of our post bellum responsibilities. In his opinion, classic just-war theory is all about restoring the status quo ante bellum. It is only when we are dealing with ‘inherently aggressive and murderous regimes’ (p. 39) that something more is called for. Indeed, it would simply be irresponsible to leave these kinds of regimes intact so that they can continue to pose grave threats to the lives of thousands of innocent people. Like Walzer, Robert Royal argues for a rather modest conception of our post bellum responsibilities in the process of implementing a ‘restoration plus’ scenario (occupation and reconstruction). ‘[M]aybe,’ Royal remarks, ‘one of the ways that we end wars well is by not trying to end them too well’ (p. 68). It would be quite unrealistic and naive to think that we can turn every war-torn society into a perfect democracy. In Afghanistan, for instance, we might have to consider settling for a postwar arrangement with the warlords, and perhaps even elements of the Taliban (p. 74). Other authors, like Jean Bethke Elshtain, Brian Orend and Robert Williams Jr., seem to favour a more justice-oriented idea of our post bellum responsibilities. Orend, for instance, proposes to develop a new postwar Geneva Convention, the goal of which should be ‘the construction of something we might call a minimal just regime in any defeated aggressor.’ (p. 187). Besides being non-aggressive and legitimate, such a regime should do what it can to satisfy the human rights of its people.

Balancing order and justice is a necessary, but not a sufficient condition for obtaining a more just and lasting peace. Creating a desire to respect the new post bellum arrangements through a process of (re)conciliation is just as important, perhaps even more so. Elshtain, for instance, stresses the need for a form of political forgiveness she labels as ‘knowing forgetting’. This is ‘a way to release present-day agents from the full burden of the past, in order that they not be weighed down by it utterly’ (p. 133). In his contribution, David Crocker focuses on the reconciliation process in the aftermath of the US Civil War. Crocker examines and refutes Jay Winik’s hypothesis stating that the reconciling gestures made by leading political and military figures (both from the North and the South) in April 1865 made the reconstruction process a success. Although jus post bellum is about the aftermath of war, this should not prevent us from reflecting on this particular subject long before the conflict’s end is in sight. Both George Lucas Jr. and Pauletta Otis convincingly argue that preparing a better peace is something that should concern us throughout all the stages of war, and not just the end stage. Lucas Jr. points out in this respect that working on just military preparedness before the war (jus ante bellum) is essential in trying to break what seems to be the eternal cycle of war (p. 60).

With his After War Ends, Larry May wants to ‘provide the first full-length philosophical treatment of … the normative principles governing various practices after war ends, jus post bellum’ (p. vii). Like most of the contributors to the previous volume, May is very well aware that ultimately the jus post bellum is about achieving ‘a just and lasting peace in a society that has been ravaged by war and human rights atrocities such as genocide’ (p. 6). He is also acutely aware that the process of obtaining such a state of affairs very often involves performing a complex balancing act. It will be recalled that Patterson talked about the need to find an ‘order–-justice–conciliation’ equilibrium. May develops a very similar line of argument. If we want to reach a just and lasting peace, we need to take into account no less than six normative post bellum principles: retribution, reconciliation, rebuilding, restitution, reparation and proportionality. May considers these six principles as ‘desiderata’, all of which must be met, albeit only to a certain extent (p. 22). It is also within this context of transitional justice that May introduces the Aristotelian notion of meionexia. This is the disposition of accepting less than is one’s due (p. 7). Although generally considered as a vice, May is convinced that such an attitude of moderation (that is, not demanding full justice) definitely constitutes a clear jus post bellum virtue.

May’s book has a clear five-part structure. Each part focuses on one jus post bellum principle (except for part four, where restitution and reparation are both discussed). The first normative principle May turns to is that of retribution. Basically, this principle requires that those responsible for serious wrongdoing should not be allowed to escape their punishment. Here the author cites the case of the Sudanese president Al Bashir. Needless to say that scrupulously avoiding flagrant cases of impunity is an important part of (re-)establishing the rule of law. Justice must not only be done; people in war-torn societies (and here May mentions especially the role of the passive bystanders) must see that justice is done. The author refers here, for instance, to the importance of the so-called ‘demonstration effects’ of postwar trials (p. 107). Similar arguments also underlie May’s discussions of two other backward-looking post bellum principles: those of restitution and reparation. What was taken away or damaged unjustly must be given back (restitution) or adequately repaired. Making sure that victims are compensated and that wrongdoers will not benefit from their immoral acts is again crucial for (re-)establishing the rule of law (p. 192).

At the same time, however, May insists that serious efforts be made to reconcile the conflicting parties. Reconciliation is absolutely necessary to restore a relation of confidence. What is needed is more than just a power-based modus vivendi, but a ‘stability for the right reasons’, to put it in Rawlsian terminology. ¹ Throughout his book, May discusses a number of ways in which this can be achieved. Perhaps the most important strategy mentioned is that of reversing the process of mutual demonisation into one of mutual humanisation. It is absolutely crucial to start treating ‘those against whom war has been waged as deserving equal respect’ (pp. 96–8). Another principle is ‘to initiate and conduct war in such a way that one does not unduly antagonize the people with whom one will eventually have to reach a peaceful accord’ (pp. 96–8). May also suggests that it might be a good idea to organise war crime trials during, and not after, war. This would allow the deterring of potential perpetrators, and it has the advantage of not unnecessarily complicating conciliation efforts after war. Promoting non-traditional trials, such as the so-called gacaca, is yet another one of May’s suggestions. Gacaca is a Rwandan traditional tribal form of conflict resolution that combines retribution and reconciliation (pp. 113–17). Now, although the author treats ‘rebuilding’ as a separate jus post bellum principle, it is clear that helping (re)build a vanquished state’s capacity to protect human rights will have unmistakable beneficial effects for the conciliation process.

May’s last post bellum principle, that of proportionality, serves a double purpose. It is first of all used as an important meta-principle. Proportionality considerations are indeed essential in weighing and balancing the five other post bellum desiderata. Whether it is judicious to grant amnesty to wrongdoers in order to prevent a human rights situation from getting worse as a consequence of initiating criminal prosecutions against those wrongdoers is but one example in point. May’s reflections on proportionality also bring him to partially embrace contingent pacifism. Due to the fog of war, proportionality calculations are notoriously difficult to make. So, instead of running the unacceptable moral risk of killing innocent people or participating in unjust wars, ‘the better strategy’, May concludes, ‘may be not to initiate or wage war in the first place, at least in many cases’ (p. 237).

Both volumes start from a very similar observation: contrary to the jus ad bellum and the jus in bello, the jus post bellum is heavily unexplored and underdeveloped from a theoretical point of view. Both books also succeed in making some headway in laying the necessary conceptual foundations and in painting a picture of what a future jus post bellum framework might look like. Now in order to appreciate the extent to which both books might contribute to the further elaboration of the jus post bellum, it is essential to examine more closely how well each of the two volumes succeeds in answering some critical jus post bellum questions. These questions are critical in the sense that they cannot be left unanswered if the theoretical status of the jus post bellum is to evolve in the direction of a fully integrated, coherent and credible third pillar of the just-war theory.

A first question concerns the relationship between traditional just-war thinking and the ethical reflection on the war’s aftermath. Although there is a clear tendency in recent literature to present the jus post bellum as a new just-war component, it would be a mistake to think that ethical considerations concerning ending wars were previously totally absent from just-war reasoning. It is more accurate to understand the current effort to elaborate a separate body of post bellum principles as the further fleshing out of some of the post bellum thoughts already (embryonically) present in the just-war tradition. ² This awareness is clearly present in both books. Turner Johnson, for instance, argues in the first part of his contribution to Patterson’s volume ‘that concern for what happens after an armed conflict has ended is already strong in classic just war thought’ (p. 23). Walzer is a bit more specific when he makes the following remark: ‘The original idea was probably that post bellum justice was included in the criteria for ad bellum justice’ (p. 35). Here, Walzer thinks more in particular about the principles of ‘reasonable chance of success’ and ‘right intention’. A war can only be just if one has the intention of bringing about a just and lasting peace, which, as we saw, is the main post bellum objective, and if there is a reasonable prospect that this state of affairs can be achieved through war.

The idea that post bellum considerations are implicitly present in traditional just-war thinking can also be found in May’s argument, albeit in a more indirect manner. Indeed, May opens his introductory chapter by saying that it is his intention to draw on the work of the 17th century Dutch diplomat, lawyer, theologian and prominent just-war theorist Hugo Grotius, in order ‘to provide a Grotian account of the normative principles of jus post bellum’ (p. 1). May’s choice for this particular approach is certainly novel, but also, unfortunately, one of the weaker points of his otherwise thoughtfully written book. A clearly stated ambition to provide a Grotian account of the jus post bellum, as we find it in May’s book, should be accompanied by a much more substantial argument in support of this particular choice. Why indeed a Grotian approach? Saying that one seeks to ‘ground the principles after war ends in the 400-year-old secular tradition of writing about the Just War’ (p. 1) obviously will not suffice. What are Grotius’s specific thoughts on war and peace, and why are they particularly suitable for developing a contemporary jus post bellum account? Did May get his inspiration to pick the six normative post bellum principles he did from Grotius, etc.? For those not very familiar with Grotius’s ideas on war and peace, May’s approach may prove to be too scattered and fragmentary. An introductory section, or even a chapter in which all these kinds of preliminary questions could find an answer, would certainly have added much more clarity to the whole of the argument. A second problem with May’s Grotian approach is that it is, all in all, unevenly present in his book. In some chapters, e.g. 2, 3, 4 and 11, the Grotian approach has a prominent place in the argument. In others (5, 6, 7 and 10) there is practically no reference made to the Dutch lawyer’s writings. It should also be mentioned that May’s approach is by no means exclusively Grotian. On more than one occasion he makes use of other prominent just-war theorists as well, like Vitoria, Suarez and especially Vattel.

Understanding that post bellum considerations have always been (in one way or another) an implicit part of the just-war theory doesn’t explain of course the recently felt need to develop these ideas on ending wars well under the form of a third just-war pillar. In his introductory chapter Patterson gives us a number of reasons why, according to him, the just-war theory has, until recently, neglected jus post bellum. The main thrust of one of his arguments is that historically war was mainly seen as an instrument used by sovereign powers to settle differences. After war was over and the dispute was settled, both the victorious and the vanquished nation simply went on with their business. Within that contractual or duelling view of war, there was no need for elaborate reasoning about the justice after war. The object of dispute went to the victor, and life moved on until the next dispute and the next war. A closely related argument Patterson offers is Hobbesian in nature. According to Hobbes, the natural state of affairs between sovereign states is that of war, not peace. So, if peace is but a rare and brief interruption of the state of war, why indeed bother with postwar justice? It is no doubt correct to assume that the conception of war as a normal instrument of statecraft considerably hindered any attempt to further develop jus post bellum. Patterson fails to appreciate, however, that this specific understanding of war has little to do with a somewhat negligent attitude of just-war theory towards its post bellum part. The above arguments have more to do with the just-war theory being pushed aside by other ways of thinking on the subject of war and peace. The Hobbesian or the contractual view of war cannot be seen as part of the just-war tradition; they are completely other lines of thought which, from the 17th century on, became serious rivals to mainstream just-war theory. ³

Yet another argument focuses on the enhanced concern for human rights and human security (as opposed to state security) especially in the post-Cold War period, in combination with the recent war experiences in Afghanistan and Iraq. Patterson and May refer to the prolonged and frustrating postwar circumstances which characterised both these wars as a catalyst for the need to explicate a clear body of post bellum criteria. ‘Soldiers and strategists’, Patterson remarks (p. 8), ‘need a framework for jus post bellum because they increasingly are called upon when Phase IV Operations (postconflict reconstruction and stabilization) degenerates into Phase 0 Operations (preconflict).’ ⁴ Surprisingly enough, and this in contrast to May, Patterson and most of the other contributors (Elshtain is an exception here) do not make the link with the emerging ‘Responsibility to Protect’ doctrine (R2P). This doctrine is not just about intervening for protective purposes in cases of mass atrocity crimes. It is also, and perhaps mainly, about rebuilding war-torn societies so that these humanitarian tragedies are less likely to happen again in the future. A very similar concern is of course also present in jus post bellum.

A second question is closely related to the first. What do the authors of both books have to say about the relation between jus post bellum and the other two just-war components? Is there a relation of dependency or independency? Saying that there is a dependency relation between two just-war components means that the moral content of one component will be influenced by whether or not the principles of the other component have been respected. An extreme example of jus in bello dependency, for example, says that the combatants belonging to an aggressor-state have only one in bello obligation (and no in bello privileges): refuse to take part or immediately stop fighting in that war. ⁵ The basic argument is that the immorality of the war ethically corrupts all things done during that war. Michael Walzer, on the other hand, is a strong defender of the jus in bello independency thesis. Just and unjust combatants alike need to respect the same in bello principles. ⁶ Combatants on both sides are on a par; they are, so it is said, moral equals.

Now, Walzer sees no reason why his independency position should not also extend to jus post bellum: ‘Post bellum justice is independent of ad bellum and in bello justice – in the same way as these latter two are independent of each other’ (p. 44). An unjust war, Walzer explains, can lead to a just outcome, and a just war to an unjust outcome. It is quite understandable that the justice of the war in no way constitutes a guarantee for the justice after the war. But how is it possible for a war to end well, if that same war wasn’t just to begin with? Suppose we are dealing with a victorious aggressor who turns out to be extremely brutal and oppressive. Isn’t Brian Orend then correct in assuming that whatever that aggressor decides to do after the war, all is lost to him morally? ⁷ Except for the highly unlikely possibility that this brutal aggressor decides to install a democratic and human rights-respecting regime, its post bellum decisions will most probably not meet the minimum requirements of justice after war. So, who is right? Even though very unlikely, it is certainly not a logical impossibility for a state that started an unjust war to respect jus post bellum. The US intervention in Iraq is an example in point: the Iraqi war was started unjustly, but there is every reason to believe that in time the Iraqi people will be better off than they were under the brutal Saddam regime.

Like Walzer, May is in favour of the jus post bellum independency thesis. He strongly defends the idea that all warring parties – just and unjust, victorious and vanquished alike – have the same obligations after war, ‘namely to re-establish a rule of law that will protect human rights and create a just and lasting peace’ (p. 19). There can be no doubt that all parties have a post bellum responsibility to try to reach a more just and durable peace. The fact that some parties will be more likely to respect these post bellum obligations than others doesn’t change this one bit. I do want to add, however, that May’s position cannot be understood as one advocating an absolute jus post bellum independency. Although it is true that all parties concerned have an obligation to contribute to the creation of a just and lasting peace, it is also true that some of these specific post bellum responsibilities turn out to be somewhat ad bellum sensitive. From a victorious aggressor, for example, we expect that he will restore the victim state’s political sovereignty and territorial integrity as soon as possible (although there is little chance that he will spontaneously do so). From a just victor, on the other hand, we expect something completely different. After having defeated the aggressor, the just victor may have a post bellum responsibility to stay a while longer (but not too long) in order to assist the vanquished state’s population in rebuilding some of its economic and political institutions so that future aggression is less likely to occur.

Now, although important, discussion of the jus post bellum dependency thesis is only peripheral in both books at best. Much more attention is given to the reverse relationship. Authors such as Lucas Jr., Royal, Otis and especially May stress the importance of post bellum considerations influencing our decisions as to when and how to fight wars. It cannot be denied that this kind of ad bellum and in bello dependency makes a lot of sense. The desire to establish a more just and lasting peace should not be exclusively limited to jus post bellum. All parts of our just-war thinking must be pervaded by the ultimate aim to seek a better peace. It would be rather inconsistent, then, if it turns out that our decisions before and during war should complicate rather than facilitate reaching such a desired state of affairs. May takes this particular dependency relationship a bit too far when he defends the idea that our ad bellum and in bello decisions should be made contingent on our ability to fulfil our responsibility to rebuild after war. When confronted with a brutal aggressor our first concern is to stop the aggression, not whether this can be done without causing too much devastation to the aggressor’s society (so that rebuilding still is a feasible option after war). I’m not saying that these kinds of post bellum considerations have absolutely no role to play in our ad bellum or in bello decision-making. I’m merely stating that their role is of a secondary nature at best. May himself seems to be a bit uncomfortable with the whole idea, as he admits that such limiting post bellum effects on jus ad bellum should be ‘restricted to the rarest and most extreme situations’ (p. 170).

What do both volumes teach us about what a jus post bellum theory should look like? Surprisingly enough, most of the presented jus post bellum theories don’t tell us very much about the ultimate objective of the post bellum effort, which is a just and lasting peace. This is surprising because if the jus post bellum’s main function is to guide us to a desired state of affairs, then the least we can expect is that this desired end state is described to us with a sufficient degree of precision. Here, we touch upon one of the key difficulties in the development of jus post bellum theory. Trying to find a just and lasting peace is by its very nature a context-sensitive activity. A just and lasting postwar solution for one conflict cannot simply be extrapolated to another. At the same time, however, we’re also confronted with what Mark Evans calls the magnification problem (p. 202). If we focus too much on the particulars of a case, our approach becomes ad hoc and our need for a jus post bellum theory simply evaporates, which is exactly what Patterson wants us to avoid. If, on the other hand, our approach becomes too abstract and disconnected from reality, jus post bellum theory will become practically irrelevant. It is best then, Evans concludes, to understand the notion of a just peace as a regulative ideal that can help us ‘to establish the normative framework within which the details are appropriately worked out on a more case-sensitive basis’ (p. 202).

So, what we need to do is to take the situation at hand and try to make things better – not perfect – for the war-torn societies involved. And jus post bellum is to guide us in this transitional effort. Some authors, e.g. Orend and Elshtain, use a post bellum model approach. Elshtain, for instance, talks about a status quo or restoration model and a transformation model, and proposes herself a third more democratic-inspired variant of the second (pp. 129–30). In casuistic terminology these different post bellum models might be understood as paradigms. These are clear-cut models ‘from which we can reason analogically, enabling us to move from familiar results of ethical reasoning to new or strange cases’. ⁸ Others, like May, use a more principle-based jus post bellum approach. The post bellum effort in May’s view is essentially about finding an appropriate context-sensitive equilibrium between six normative post bellum principles. Balancing and weighing up the different relevant principles in order to come to a more conflict-resistant end state require a clear sense of reconciliation and moderation (meionexia) from all those involved in the peace process. Whereas May considers reconciliation as one of his post bellum principles, it would be more appropriate to interpret it as some kind of overall disposition or post bellum virtue, necessary to come to an adequate equilibrium. Being reconciliatory and moderate for that matter is not enough. One must also possess the meta-virtue of practical reason or phronesis. The phronemos’s deliberations will of course be informed by yet another of May’s principles: that of proportionality.

One must be careful, however, not to proceed in a purely top-down fashion. Good post bellum reasoning (and good moral reasoning in general, for that matter) are dialectic in nature. General principles are, of course, necessary to guide us in our case-by-case deliberations, but these principles also need to be informed constantly by what Rawls calls our considered judgements. ⁹ One example in point is the idea that a moderate disposition in matters of reparation or retribution must originate in the victims (or the victims’ families) themselves. Moderation cannot be imposed on them by governments. The view that those who have already suffered can be made to adopt a reconciling attitude towards those who wronged them seriously is simply immoral. Degrading the victims to the status of convenient ‘bargaining chips’ in the ongoing peace process is to victimise them all over again.

One of the main merits of developing jus post bellum as a separate just-war component consists in bringing our focus back on what the just-war theory should be about: the use of military force as an instrument for achieving a better (i.e. a more stable and a more just) peace. But, in addition to promoting a more peace-centred approach, there is still another implication worth mentioning. In elaborating a more substantial post bellum component, it is certainly fair to say that the already impressive moral architecture of the just-war tradition is being extended to new areas of knowledge and practical insight. It would be equally true to say, however, that, by stressing the importance of ending wars well, the just-war theory becomes increasingly integrated into existing fields of study, such as those of transitional justice, peacebuilding and conflict resolution. This way of seeing things has two clear advantages. First, it encourages just-war theorists to realise that, in exploring post bellum issues, they are not advancing into a total terra incognita. Post bellum insights gathered in the aforementioned fields of study can and should be a source of inspiration. This observation is certainly recognised in both volumes. Although most of the authors work within a just-war perspective, they are well aware of the importance of other worthwhile perspectives, for example those of transitional justice and conflict resolution (as explicitly mentioned by both Patterson and May in their introductions). No doubt both books will primarily appeal to an audience interested in the field of the ethics of war and peace. But clearly both books have been written with a much broader audience in mind, and rightly so. Those interested in related fields (e.g. transitional justice or peacebuilding) would have a chance to get acquainted with just-war theory. And, vice versa, those interested in just-war thinking can come to realise that contributions in scholarly fields other than their own can help them to come to grips with some of the most complex and challenging post bellum issues.