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«The just war tradition usually revolves around two crucial points: the justness of a war, and the justness of the way that war is fought. These two ...»

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Jus Post Bellum

GARY J. BASS

The just war tradition usually revolves around two crucial points: the

justness of a war, and the justness of the way that war is fought. These

two points—jus ad bellum and jus in bello, respectively—define the

debate over whether a war is moral.

Much less has been said about what happens after a war. But the after-

math of war is crucial to the justice of the war itself. Political leaders

often invoke postwar developments like bringing democracy or stability as part of justifying or condemning a war;1 but political theorists have not yet fully come to terms with which of these arguments are morally compelling.2 It is important to better theorize postwar justice—jus post bellum—for the sake of a more complete theory of just war.

For generous help, my thanks to the Editors of Philosophy & Public Affairs, Benjamin Berger, Michael Doyle, Eric Gregory, Krysia Kolodziej, Sankar Muthu, Kal Raustiala, Andrew Sabl, Anne-Marie Slaughter, Michael Walzer, and especially Jennifer Pitts.

1. In 1919, for instance, the editors of The New Republic wrote of the Treaty of Versailles, “If a war which was supposed to put an end to war culminates without strenuous protest by humane men and women in a treaty of peace which renders peace impossible, the lib- eralism which preached this meaning for the war will have committed suicide.” (“Peace at Any Price,” The New Republic, May 24, 1919, p. 101.)

2. To take a distinguished example at random, see Robert L. Holmes, On War and Morality (Princeton, N.J.: Princeton University Press, 1989), pp. 146–82, for a splendid dis- cussion of jus ad bellum and jus in bello, but with nothing said about postwar outcomes.

The same can be said about the pastoral letter by the National Conference of Catholic

Bishops, The Challenge of Peace: God’s Promise and Our Response (Washington, D.C.:

United States Catholic Conference, 1983), pp. 28–48. For compelling thoughts about postwar justice, see James Turner Johnson, Morality and Contemporary Warfare (New Haven, Conn.: Yale University Press, 1999), pp. 207–18. The most comprehensive effort on jus post bellum I have found is Brian Orend’s helpful War and International Justice: A Kantian Perspective (Waterloo, Ont.: Wilfrid Laurier University Press, 2000), pp. 217–63. He lists five principles: a just termination of the war once its objectives have been largely met; right intention, meaning no revenge; working with a legitimate domestic authority that respects human rights; discrimination, meaning no collective punishment; and proportionality.

©  by Blackwell Publishing, Inc. Philosophy & Public Affairs , no.  385 Jus Post Bellum Soon before the Iraq war, George W. Bush said of the United States’ reconstruction of Germany and Japan after World War II, “After defeat- ing enemies, we did not leave behind occupying armies, we left constitutions and parliaments.”3 Jimmy Carter, an opponent of war in Iraq, asserted that the Christian just war tradition includes postwar obligations: “The peace it establishes must be a clear improvement over what exists.”4 In their different ways, both presidents imply that in order for a state to wage a just war, it must demonstrate not only that it went to war for good reasons, but also that its postwar conduct was consistent with those ends: helping to make the region more stable and secure, and leaving the affected populations less subject to violence and oppression.

Both Bush and Carter suggest that if a dictatorship is, thanks to such a war, replaced simply by anarchy and widespread material deprivation, observers should hesitate to call the war itself just. Like all just war theory, jus post bellum is not an absolute bar to war, but a way of focusing it, hoping to temper the righteous and discourage the reckless.

This article aims primarily to demonstrate that jus post bellum is an important component of just war theory. To do so, I make a preliminary exploration of the issues surrounding the justice of wars’ aftermath and of the criteria at the core of jus post bellum. Specifically, this article focuses on three questions central to the justice of a belligerent power’s postwar conduct. First, what obligations are there to restore the sovereignty of a conquered country and what limitations do these obligations impose on states’ efforts to remake the governments of vanquished countries? Second, conversely, what are the rights and obligations that belligerent states retain in the political reconstruction of a defeated power? Are these rights limited to the reconstruction of genocidal regimes, or can a case be made for the political remaking of less dangerous dictatorships? Third, what obligations might victorious states have to restore the economy and infrastructure of a defeated state? And conversely, do victorious states have a right to demand some kind of reparation payments from defeated states who were aggressors in the concluded war?

3. “In the President’s Words: ‘Free People Will Keep the Peace of the World’,” The New York Times, February 27, 2003, p. A10.

4. Jimmy Carter, “Just War—or Just a War?” The New York Times, March 9, 2003, Week in Review section, p. 13. In fact, the just war tradition originally only mandated a return to the status quo ante.





386 Philosophy & Public Affairs This article will proceed in four sections. In Section I, I will connect the idea of jus post bellum with the existing strands of just war theory. In Section II, I will argue that there should be a presumption against reconstruction. In Section III, I will examine cases that cut against that presumption—in particular, the case of genocidal states, where I will argue that there is a duty to reconstruct their polities. This section will also weigh the treatment of aggressive states, sketching out the dimensions of the debate but not resolving it definitively. And this section will argue for war crimes trials, although not at the expense of peacemaking.

Finally, in Section IV, I will turn to the problems of economic reconstruction, looking both at obligations on the victors to restore wartime wreckage and obligations on the vanquished to make reparations.

I. Just War Theory and JUS POST BELLUM Existing just war theory provides some guidance for theorizing jus post bellum, because certain rights and obligations of postwar conduct stem from the requirements for the just cause and conduct of wars. Once one sees the category of concern for postwar justice, a number of conclusions about the demands of jus post bellum follow from extant just war theory.

Jus post bellum is connected with jus ad bellum, for instance, 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.

If a state wages war to remove a genocidal regime, but then leaves the conquered country awash with weapons and grievances, and without a security apparatus, then it may relinquish by its postwar actions the justice it might otherwise have claimed in waging the war. Jus post bellum also may be connected with jus in bello. The jus in bello requirement of proportionality suggests that, just as there must be restraint even in combat, there must be restraint in the goals on behalf of which the fighting is being done—meaning that both total war and total conquest are, at the very least, suspect. Finally, states’ actions in bringing the war to a conclusion are clearly connected to their conduct during war’s aftermath, and so the obligations that a theory of jus in bello imposes on victorious states regarding the content of peace treaties, acceptable terms of surrender, and permissible reparations will have implications 387 Jus Post Bellum for the actions of those victorious states in the months and years following the war’s conclusion.

The existing literature considers jus post bellum largely in the context of jus ad bellum. In City of God, Augustine closely links war with the postwar goal of peace: “it is an established fact that peace is the desired end of war. For every man is in quest of peace, even in waging war, whereas no one is in quest of war when making peace.”5 Although Michael Walzer does not specifically write of jus post bellum in his classic Just and Unjust Wars, he does take pains to note that there is justice in the goals of war, which implies that the postwar execution of those goals

might weigh in the overall judgment of the war’s justice:

The theory of ends in war is shaped by the same rights that justify the fighting in the first place—most importantly, by the right of nations, even of enemy nations, to continued national existence and, except in extreme circumstances, to the political prerogatives of nationality.

The theory incorporates arguments for prudence and realism; it is an effective bar to total war; and it is, I think, harmonious with other features of jus ad bellum.6 This article mostly follows the liberal approach to just war theory championed by Walzer, whose work properly remains the most influential on the topic. This piece emphasizes, with Walzer and against realists, the importance of jus ad bellum and jus in bello, but it seeks to expand upon his approach by incorporating jus post bellum. I hold with Walzer’s “legalist paradigm,” in which political communities derive their rights from the consent of their individual citizens. Sovereignty and territorial integrity are the bedrock of international relations, except in a few rare cases, such as those where a polity engages in genocide. Walzer’s emphasis on individualism, sovereignty, and territorial integrity leads, as I argue below in Section II, to a presumption that victorious states should seek to limit their occupation of conquered countries to the shortest time possible. This model also suggests that victorious states should work throughout any occupation of foreign soil to make their actions accountSt. Augustine, Concerning the City of God Against the Pagans, trans. Henry Bettenson (London: Penguin, 1984), bk. 19, ch. 12, p. 866.

6. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic, 1992), p. 123.

388 Philosophy & Public Affairs able and transparent to the citizens of the vanquished state and to win the consent of the conquered population.

John Rawls’s discussion of just war in The Law of Peoples also offers some resources for thinking about postwar obligations of belligerent states. As with Walzer, Rawls’s emphasis on sovereignty and the integrity of political communities leads him to argue for the importance of tolerating nonliberal societies, so that even liberal states must “refrain from exercising political sanctions—military, economic, or diplomatic—to

make a people change its ways.”7 As a result of this emphasis on sovereignty, Rawls, like Walzer, insists that occupation be as brief as possible:

once peace is securely reestablished, the enemy society is to be granted an autonomous well-ordered regime of its own. (For a time, however, limits may be rightly placed on the defeated society’s freedom in foreign policy.) The enemy’s people are not to be held as slaves or serfs after surrender, or denied in due time their full liberties.8 Rawls further insists that the ending of war carries with it specific moral

duties for states who would claim to fight a just war:

well-ordered people are by their actions and proclamations, when feasible, to foreshadow during a war both the kind of peace they aim for and the kind of relations they seek. By doing so, they show in an open way the nature of their aims and the kind of people they are.

... The way a war is fought and the deeds done in ending it live on in the historical memory of societies and may or may not set the stage for future war. It is always the duty of statesmanship to take this longer view.9 Although Rawls does not explicitly present a notion of jus post bellum, such passages suggest that liberal or well-ordered peoples and their leaders have a duty to consider the long-term effects of a war, and their

–  –  –

conduct during war’s aftermath will surely play an important role in this respect. Rawls’s rather sweeping arguments do not offer much guidance regarding particular obligations that bind a victorious state in war’s aftermath. For how long may limits be imposed on a society’s foreign policy? What exactly does it mean to say an enemy society “is to be granted an autonomous regime”: who is obliged to help it secure such a regime, and how? Nonetheless, Rawls’s admittedly fragmentary remarks suggest that he would have agreed that an account of jus post bellum should form a part of a theory of just war.

Tellingly, it has not only been just war liberals like Walzer but also realists who have worried about postwar complications. Although realists are typically concerned about the feasibility of war and its implications for the state’s strategic interests rather than about its justice, many of the pragmatic worries expressed by realists about postwar planning should be taken into account by just war liberals—if only so that they can be properly rebutted. Somalia’s continued chaos has been held up by realists such as Colin Powell as a reason why humanitarian military interventions are unwise.10 The strategist Edward Luttwak made a similar claim about Kosovo.11 Similarly, in recent debates about a second U.S.

war against Saddam Hussein, Iraq’s post-Ba’th future was held up as a powerful argument for and against war.12 This suggests that a better theorization of jus post bellum would contribute to many debates between liberals and realists.

In both Walzer and Rawls’ senses, jus post bellum is somewhat akin to jus in bello—a crucial and related addendum to the category of jus ad bellum. Even if a war has a just cause, it still must be fought justly. If jus post bellum is incorporated into just war theory, then if a war has a just cause, and is fought justly, the war still must lead to a just postwar settlement. Or, to put it less hopefully, just postwar actions cannot redeem

10. Colin Powell with Joseph E. Persico, My American Journey (New York: Random House, 1995), p. 588.

11. Edward N. Luttwak, “No-Score War,” Times Literary Supplement, July 14, 2000, p. 11.



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