Justice after War Brian Orend* - Sadly,there are few restraints on
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Justice after War
Brian Orend*
adly, there are few restraints on the importance, of ending wars in a full and fair
S endings of wars. There has never been
an international treaty to regulate war’s
final phase, and there are sharp disagree-
fashion. We know that when wars are
wrapped up badly, they sow the seeds for
future bloodshed.2
ments regarding the nature of a just peace • To allow unconstrained war termination
treaty. There are, by contrast, restraints is to allow the winner to enjoy the spoils of
aplenty on starting wars, and on conduct war. This is dangerously permissive, as win-
during war. These restraints include: politi- ners have been known to exact peace terms
cal pressure from allies and enemies; the that are draconian and vengeful. The Treaty
logistics of raising and deploying force; the of Versailles, terminating World War I, is
United Nations, its Charter and Security often mentioned in this connection.3
Council; and international laws like the • Failure to regulate war termination may
Hague and Geneva Conventions. Indeed, in prolong fighting on the ground. Since they
just war theory—which frames moral prin- have few assurances regarding the nature of
ciples to regulate wartime actions—there is a the settlement, belligerents will be sorely
robust set of rules for resorting to war (jus ad tempted to keep using force to jockey for
bellum) and for conduct during war (jus in position. Many observers felt that this reali-
bello) but not for the termination phase of ty plagued the Bosnian civil war, which saw
war.1 Recent events in Afghanistan, and the many failed negotiations and a three-year
“war against terrorism,” vividly underline “slow burn” of continuous violence as the
the relevance of reflecting on this omission, very negotiations took place.4
and the complex issues related to it. • Allowing war termination to be deter-
The international community should mined without normative restraints leads to
remedy this glaring gap in our ongoing inconsistency and confusion. First, how can
struggle to restrain warfare. The following we try to regulate the first two phases of
facts bear this out: war—the beginning and middle—yet not the
• Recent armed conflicts—in the Persian end? Second, the lack of established norms to
Gulf, Bosnia, Rwanda, and Kosovo— guide the construction of peace treaties leads
demonstrate the difficulty, and illustrate the to patchwork “solutions,” mere ad hoc
* Thanks to the editors of Ethics & International Affairs, bleday, 1992); David Rieff, Slaughterhouse: Bosnia and
especially Ch ri s tian Barry. Thanks, too, to Michael the Failure of the West (New York: Simon and Schuster,
Walzer and some anonymous reviewers who com- 1995); Gerard Prunier, The Rwanda Crisis: History o f a
mented on an earlier draft. Genocide (New York: Columbia University Press, 1995);
1 On just war theory in general,see Michael Walzer, Just and Brian Orend, “Crisis in Kosovo: A Just Use of
and Unjust Wars, 3rd ed.(New York: Basic Books, 2000); Force?” Politics 19, no. 3 (1999), pp. 125-30.
and Brian Orend, Michael Walzer on War and Justice 3 Manfred F. Boemeke,Gerald D. Feldman, and Elisabeth
(Cardiff: University of Wales, 2000). Glaser, eds., The Treaty of Versailles: A Reassessment after
2 David E. Decosse, ed., But Was It Just? Reflections on 75 Years (Cambridge: Cambridge University Press, 1998).
the Morality o f the Persian Gulf War (New York: Dou- 4 Rieff, Slaughterhouse.
43arrangements that may not meet well-con- tional armed conflicts involving complex
sidered standards of prudence and justice. mixtures of state and nonstate actors. For
Peace treaties should sti ll , of course, instance, I believe the forthcoming princi-
remain tightly tailored to the historical real- ples are as meaningful for the current “war
ities of the particular conflict in question. against terrorism” as they were for World
But admitting this is not to concede that the War II. Next,the set of postwar principles is
search for general guidelines, or universal being offered as guidance to those partici-
standards, is futile or naïve. There is no pants who want to end their wars in a fair,
inconsistency, or mystery, in holding partic- justified way. Not all participants do, of
ular actors in complex local conflicts up to course, and to the extent they fail to do so,
more general, even universal standards of they act unjustly during the termination
con du ct . Judges and juries do that daily, phase. A related assumption is that there is
evaluating the factual complexities of a given no such thing as “victor’s justice.” The raw
case in light of general principles. We should fact of military victory in war does not of
do the same regarding war termination. itself confer moral rights upon the victor,
This article will consider what participants nor duties upon the vanquished. In my
should do as they move to wrap up a war. It judgment, it is only when the victorious
will do so while drawing on the resources regime has fought a just and lawful war, as
contained within the just war tradition,par- defined by international law and just war
ticularly its reworking offered by Michael theory, that we can speak meaningfully of
Walzer.5 Since just war theory has played a rights and duties, of both victor and van-
constructive role thus far in its influence on quished, at the conclusion of armed conflict.6
political and legal discourse concerning Such a just and lawful war is defined by
launching and carrying out war, there is rea- just war theorists as one that was begun for
son to believe it has light to shed on war ter- the right reasons, and that has been fought
mination. My goal is to construct a general set appropriately. The resort to war was just (jus
of plausible principles to guide communities ad bellum), and only the right methods were
seeking to resolve their armed conflicts fairly. used during the war (jus in bello). A war
begun for the right reasons is a war fought in
THE ENDS OF A JUST WA R 5 This is not to deny the importance of the robust con-
flict-resolution literature. Much of that literature is rel-
The first step is to answer the question: What evant to the present concern, but not much of it is
may a participant rightly aim for with regard located within the explicitly ethical values and commit-
to a just war? What are the goals to be ments of just war theory, whereas this piece is.For more
on conflict resolution in general, see Stephen J. Cim-
achieved by the settlement of the conflict? bala, ed., Strategic War Termination (New York: Praeger,
We need some starting assumptions to focus 1986); Paul R.Pillar, Negotiating Peace: War Termination
our thoughts on these issues.First,this arti- as a Bargaining Process (Princeton: Princeton Universi-
ty Press, 1983);Stuart Albert and Edward Luck, eds., On
cle will consider classical cases of interstate the Endings of Wars (Port Washington, N.Y.: Kennikat
armed conflict to provide a quicker, cleaner Press, 1980); A. J. P. Taylor, How Wars End (London:
route to the general set of postwar principles Hamilton, 1985); and Fen Osler Hampson, Nurturing
Peace: Why Peace Settlements Succeed or Fail (Washing-
sought after. I hope to show that the result-
ton, D.C.: U.S. Institute of Peace, 1996).
ing set can then be applied more broadly, 6 Adam Roberts and Richard Guelff, eds., Documents on
not only to civil wars but also to unconven- the Laws of War (Oxford: Oxford University Press, 1999).
44 Brian Orendresponse to aggression, defined by Walzer as to reestablish the state of affairs that
“any use of force or imminent threat of force obtained before the war broke out. Restore
by one state against the political sovereignty the equilibrium disturbed by the aggressor,
or territorial integrity of another.” 7 Such traditionalists advise. As Walzer points out,
state rights are themselves founded, ulti- however, this assertion makes little sense:
mately, upon individual human rights to life one ought not to aim for the literal restora-
and liberty. The most obvious example of an tion of the status quo ante bellum because
act of international aggression would be an that situation was precisely what led to war
armed invasion by one state bent on taking in the first place. Also, given the sheer
over another, much as Iraq did to Kuwait in destructiveness of war, any such literal
August 1990. But this requirement of just restoration is empirically impossible. War
cause,in terms of resisting aggression,is not simply changes too much. So the just goal of
the only rule just war theorists insist on a just war, once won, must be a more secure
prior to beginning war. They also stipulate and more just state of affairs than existed
that the war in question be launched as a last prior to the war. This condition Walzer
resort, be publicly declared by a proper refers to as one of “restoration plus.”10 What
authority, have some probability of success, might such a condition be?
be animated by the right intention of resist- The general answer is a more secure pos-
ing aggression, and also be expected to pro- session of our ri gh t s, both individual and
duce at least a proportionality of benefits to collective. The aim of a just and lawful war
costs. These general norms have worked their is the resistance of aggression and the vin-
way into various pieces of international law.8 d i c a ti on of the fundamental ri ghts of
A war begun justly must also be fought po l i tical com mu n i ti e s , u l ti m a tely on
appropriately. For just war theorists, this behalf of the human rights of their indi-
means that a state’s armed forces obey at vidual citizens. The overall aim is, in Walz-
least three rules of right conduct: they must er’s words, “to reaffirm our own deepest
discriminate between combatant (military) values” with regard to justice, both domes-
and noncombatant (civilian) targets and tic and international. It is not implausible
direct their armed force only at the former; to follow John Rawls in claiming that, in
they may attack legitimate military targets our era, no deeper, or more basic, political
only with proportionate force; and they are values exist than those human rights that
not to employ methods which, in Walzer’s ju s tify a re a s on a ble set of s ocial insti tu-
words, “shock the moral conscience of
mankind.” Examples of such heinous meth- 7 Walzer, Just and Unjust Wars, p. 62.
8 For more on jus ad bellum, see Walzer, Just and Unjust
ods include the deployment of weapons of
Wars, pp. 3-33 and 51-125; and David Luban,“Just War
mass destruction, and the use of mass rape and Human Rights,” Philosophy and Public Affairs 9
campaigns as instruments of war. These (1980), pp. 160-81. On law, see Roberts and Guelff, eds.,
principles of jus in bello, alongside those of Documents on the Laws of War.
9 For more on jus in bello, see Walzer, Just and Unjust
jus ad bellum, offer a coherent set of plausi- Wars, pp. 34-50 and 127-224 (quote at p. 107); Thomas
ble values to draw on while developing an Nagel, “War and Massacre,” Philosophy and Public
account of just war settlement.9 Affairs 1 (1972), pp. 123-45; Robert K.Fullinwinder, “War
and Innocence,” Philosophy and Public Affairs 5 (1975),
It is often contended that the just goal of
pp. 90-97; and Geoffrey Best, War and Law Since 1945
a just war is the proverbial status quo ante (Oxford: Oxford University Press, 1994).
bellum: the victorious regime ought simply 10 Walzer, Just and Unjust Wars, pp. xx, 119.
Justice after War 45ti ons and ulti m a tely en a ble a sati s f yi n g impose outside constraints on what can be
political existence.11 done to an aggressor fo ll owing its defeat.
From this general principle, that the prop- This line of reasoning might spark resistance
er aim of a just war is the vindication of those from those who view favorably the Allied
rights whose violation grounded the resort to insistence on unconditional surrender dur-
war in the first place ,m ore detailed commen- ing the closing days of World War II. But we
tary needs to be offered. For what does such need to distinguish here between rhetoric
“vindication” of rights amount to: what does and reality. The policy of unconditional sur-
it include; what does it permit; and what does render followed by the Allies was not gen-
it forbid? The last aspect of the question uinely unconditional; there was never any
seems the easiest to answer, at least in abstract insistence that the Allies be able to do what-
terms: The principle of rights vindication ever they wanted with the defeated nations.
forbids the continuation of the war after the Churchill himself, for example,said: “We are
relevant rights have, in fact, been vindicated. bound by our own consciences to civiliza-
To go beyond that limit would itself become tion. [We are not] entitled to behave in a
aggression:men and women would die for no barbarous manner.”12 At the very most, the
just cause. This bedrock limit to the justified policy the Allies pursued was genuinely
continuance of a just war seems required in unconditional vis-à-vis the governing
order to prevent the war from spilling over regimes of the Axis powers, but not vis-à-vis
into something like a crusade, which the civilian populations in those nations.
demands the utter destruction of the demo- Such a discriminating policy on surren-
nized enemy. The very essence of justice of, der may be defensible in extreme cases,
in, and after war is about there being firm involving truly abhorrent regimes, but is
limits, and constraints, upon its aims and generally impermissible. For insistence on
conduct. Unconstrained fighting, with its unconditional surrender is disproportion-
fearful prospect of degenerating into barbar- ate and will prolong fighting as the defeated
ity, is the worst-case scenario—regardless of aggressor refuses to cave in, fearing the con-
the values for which the war is being fought. sequences of doing so. Walzer believes this
This emphasis on the maintenance of was the case during the Pacific War, owing to
limits in wartime has the important conse- America’s insistence on Japan’s uncondi-
quence that there can be no such thing as a tional surrender. It is thus the responsibility
morally mandated unconditional surrender. of the victor to communicate clearly to the
This is so because,as Walzer observes, “con- losing aggressor its sincere inten ti ons for
ditions inhere in the very idea of interna- postwar settlement, intentions that must be
tional relations, as they do in the idea of consistent with the other principles of post-
human relations.” The principles vindicated war justice here developed.13
successfully by the just state themselves What does the just aim of a just war—
namely, rights vindication, constrained by a
11 Walzer, Just and Unjust Wars, pp. 110, 117, 123; John proportionate policy on surrender—pre-
Rawls, “The Law of Peoples,” in Steven Shute and Susan cisely include or mandate? The fo ll owing
Hurley, eds., On Human Rights (New York: Basic Books,
seems to be a plausible list of propositions
1993), pp. 40-80.
12 Churchill quoted in Walzer, Just and Unjust Wars, p. 112. regarding what would be at least permissible
13 Walzer, Just and Unjust Wars, pp. 113, 263-68. with regard to a just settlement of a just war:
46 Brian Orend• The aggression needs, where possible the rehabilitation and therapy required after
and proportional, to be rolled back, which is the surgery, in order to ensure that the orig-
to say that the unjust gains from aggression inal intent—namely, defeating the threat
must be eliminated. If, to take a simple and protecting the rights—is effectively
example,the aggression has involved invad- secured and that the patient is materially
ing and taking over a country, then justice better off than before the exercise. The
requires that the invader be driven out of the “patient” in this case is,in the first instance,
country and secure borders reestablished. the victim(s) of aggression. Secondarily, the
The equally crucial corollary to this princi- term refers to the international community
ple is that the victim of the aggression is to generally—including even the aggressor(s)
be reestablished as an independent political or at least the long-term interests of the
community, enjoying political sovereignty civilians in aggressor(s).15
and territorial integrity. Sufficient comment has already been
• The commission of aggression,as a seri- offered on what the first proposition
ous international crime, requires punish- requires and why: aggression,as a crime that
ment in two forms: compensation to the justifies war, needs to be ro ll ed back and
victim for at least some of the costs incurred have its gains eliminated as far as is possible
during the fight for its rights; and war and proportional; and the victim of aggres-
crimes trials for the initiators of aggression. sion needs to have the objects of its rights
I will later argue that these are not the only restored. This principle seems quite
war crimes trials required by justice in war’s straightforward, one of justice as rectifica-
aftermath. tion. But what about compensation, “politi-
• The aggressor state might also require cal rehabilitation,” and war crimes trials?
some demilitarization and political rehabili-
tation, depending on the nature and severity
C O M P E N S ATION AND
of the aggression it committed and the threat
it would continue to pose in the absence of D I S C R I M I N AT I O N
such measures. “One can,” Walzer avers,
Since aggression is a crime that violates
“legitimately aim not merely at a successful
important rights and causes much damage ,i t
resistance but also at some reasonable secu-
is reasonable to contend that, in a classical
rity against future attack.”14 The question of
context of interstate war, the aggressor
forcible, forward-looking rehabilitation is
nation, “Aggressor,” owes some duty of com-
one of the most controversial and interesting
pensation to the victim of the aggression,
surrounding the justice of settlements.
“Victim.” This is the case because, in the
Metaphorically, one might say that a just
absence of aggression,Victim would not have
war, justly prosecuted,is something like rad-
to reconstruct itself following the war, nor
ical surgery: an extreme yet necessary meas-
ure to be taken in defense of fundamental 14 Walzer, Just and Unjust Wars, p. 118.
values, like human rights, against serious, 15 This image of just war as radical surgery, and just set-
lethal threats to them, such as violent tlement as the subsequent therapy, came to mind while
reading Nissan Oren,“Prudence in Victory,” in Nissan
aggression. And if just war, justly prosecut-
Oren, ed., Termination of War: Processes, Procedures and
ed, is like radical surgery, then the justified Aftermaths (Jerusalem: Hebrew University Press, 1982),
conclusion to such a war can only be akin to pp. 147-64.
Justice after War 47would it have had to fight for its rights in the erations of discrimination with regard to
first place, with all the death and destruction answering the “from whom” question: When
that implies. Walzer says that the deepest it comes to establishing terms of compensa-
nature of the wrong an aggressor commits is tion,care needs to be taken by the victorious
to make people fight for their rights, that is, Victim, and/or any third-party “Vindica-
make them resort to violence to secure those tors” who fought on behalf of Victim,not to
things to which they have an elemental enti- penalize unduly the civilian population of
tlement, and which they should enjoy as a Aggressor for the aggression carried out by
matter of course. To put the issue bluntly, their regime. This entails, for example, that
Aggressor has cost Victim a considerable any monetary compensation due to Victim
amount, and so at least some restitution is ought to come, first and foremost, from the
due. The critical questions are how much personal wealth of those political and mili-
compensation, and by whom in Aggressor is tary elites in Aggressor who were most
the compensation to be paid out? responsible for the crime of aggression.
The “how much” question, clearly, will be Walzer se ems to disagree when he suggests
relative to the nature and severity of the act that such a discriminating policy on repara-
of aggression itself,alongside considerations tions “can hardly” raise the needed amount.
of what Aggressor can reasonably be expect- But he ignores the fact that, historically,
ed to pay. Care needs to be taken not to those who launch aggressive war externally
bankrupt Aggressor’s resources, if only for have very often abused their power internal-
the reason that the civilians of Aggressor ly to accumulate personal fortunes. In light
still, as always, retain their claims to human of this supposed shortfall, Walzer argues
rights fulfillment, and the objects of such that, since “reparations are surely due the
rights require that resources be devoted to victims of aggressive war,” they should be
them.16 There needs,in short, to be an appli- paid from the taxation system of the defeat-
cation of the principle of proportionality ed Aggressor. There ought to be a kind of
here. The compensation required may not postwar poll tax on the population of
be draconian in nature. We have some indi- Aggressor, with the proceeds forwarded to
cation,from the financial terms imposed on Victim. In this sense, he says, “citizenship is
Germany at the Treaty of Versailles, that to a common destiny.”18 I believe,however, that
beggar thy neighbor is to pick future fights.17 this fails to respect the discrimination prin-
This reference to the needs of the civilians ciple during war termination. Though Walz-
in Aggressor gives rise to important consid- er insists that “the distribution of costs is not
the distribution of guilt,” it is difficult to see
16 James Nickel, Making Sense of Human Rights (Berke- what that is supposed to mean here: Why
ley: University of California Press, 1987). not respond by asking why civilians should
17 Boemeke,Feldman,and Glaser,eds., The Treaty of Versailles.
be forced, through their tax system, to pay
18 One of my reviewers concurred with Walzer, drawing
on the analogy of shareholders being co ll ectively
for the damage if they are not in some sense
responsible, at least in financial terms, for corporate responsible for it? Respect for discrimina-
wrongdoing even when such was committed by man- tion entails taking a reasonable amount of
agement only. But I’m not sure that analogy holds:
compensation only from those sources that
shareholders lose money they risked voluntarily in pur-
suit of capital gains, whereas citizenship is less volun- can afford it and that were materially linked
tary and far weightier. to the aggression in a morally culpable way.
48 Brian OrendIf such reparations “can hardly” pay for the ing community of thought that commends
destruction Aggressor meted out on Victim, instead sanctions that target elites, for
then that fiscal deficiency does not somehow instance by freezing personal assets, blocking
translate into Victim’s moral entitlement to tax weapons trade, and banning foreign trav-
everyone in Aggressor.The resources for recon- el.20The assets of some organizations alleged
struction simply have to be found elsewhere.19 to be involved in terrorism have been frozen
An application to recent events can be since 9-11; it will be interesting to see whether
seen through consideration of the following further sanctions in the war against terror-
question: Should the United States levy a ism will be applied, for instance, to entire
postwar poll tax on the citizens of countri e s ,a n d ,i f so, what kind.
Afghanistan to increase the funds available
to compensate and care for those who lost
R E H A B I L I TAT I O N
loved ones during the 9-11 strikes, or else to
rebuild New York’s financial district? The The notion under this heading is that,in the
principles just developed would seem to postwar environment, Aggressor may be
argue against such a tax,as there is a serious required to demilitarize,at least to the extent
question of affordability in Afghanistan and that it will not pose a serious threat to Vic-
an even sharper one regarding responsibili- tim—and other members of the interna-
ty, as the available evidence points to a col- tional community—for the foreseeable
lusion between the now-routed Taliban future. The appropriate elements of such
regime and the al-Qaeda network as the demilitarization will clearly vary with the
source of the attacks. Commendably, there nature and severity of the act of aggression,
has been little talk of any such punitive along with the extent of Aggressor’s residual
measure on Afghanistan, and Americans military capabilities following its defeat. But
have instead turned toward each other to they may, and often do, involve:the creation
raise the needed reconstruction resources. of a demilitarized “buffer zone” between
Indeed, it is Afghanistan’s interim govern- Aggressor and Victim (and any Vindicator),
ment that has formally requested American whether it be on land,sea or air; the capping
resources to help rebuild its broken social of certain aspects of Aggressor’s military
and physical infrastructure. capability; and especially the destruction of
A further implication of respect for dis- Aggressor’s weapons of mass destruction.
crimination in settlements is a ban on sweep- Once more, proportionality must be
ing socioeconomic sanctions. The reasoning brought to bear upon this general principle:
is clear: Sanctions that cut widely and deeply The regime in Aggressor may not be so
into the well-being of the civilian population
are not only punitive, they surely end up
punishing some who do not deserve such 19 Walzer, Just and Unjust Wars, p. 297.
20 See Ramsey Clark, The Children are Dying: The Impact
treatment. Such sanctions are properly con-
of Sanctions on Iraq (New York: World View Forum,
demned as inappropriately targeted and 1996); Anthony Arnove and Ali Abunimah, eds., Iraq
morally wrongheaded. Great controversy, of Under Siege: The Deadly Impact of Sanctions and War
course, surrounds the issue of whether (London: South End Press, 2000); Albert Pierce ,“ Ju s t
War Principles and Economic Sanctions,” Ethics & Inter-
American-led sanctions on Iraq, following
national Affairs 10 (1996), pp. 99-113; and the multi-essay
the Persian Gulf War, count as such sanctions exchange on the issue between Joy Gordon and George
or not. There is a vocal and apparently grow- Lopez, Ethics & International Affairs 13 (1999), pp. 123-50.
Justice after War 49demilitarized as to jeopardize its ability to of providing domestic law and order,
fulfill its function of maintaining law and human rights fulfillment, and adherence to
order within its own borders, and of pro- the basic norms of international law,
tecting its people from other countries who notably those banning aggression. The reha-
might be tempted to invade if they perceive bilitations of the governing structures of
serious weakness in Aggressor. Another way both West Germany and Japan fo ll owing
this requirement could be met would be for World War II, largely by the United States,
the victors to provide reliable security guar- seem quite stellar and instructive examples
antees to the people of Aggressor. in this regard.22 They also illustrate the pro-
The imposition of some substantial found and costly commitments that must be
requirement of political rehabilitation borne by any Victim or Vindicator seeking
seems the most serious and invasive meas- to impose such far-reaching and consequen-
ure permitted a just regime, fo ll owing its tial terms on the relevant Aggressor follow-
justified victory over Aggressor. As Walzer ing defeat.
asserts,the “outer limit” of any surrender by One open question concerns whether we
Aggressor to Victim, and any Vindicator, is “probably” should agree with Walzer that
the construction and maintenance of a new rehabilitation be reserved only for the most
kind of domestic political regime within grave cases of aggression, like Nazi Ger-
Aggressor, one more peaceable, orderly, and many. Why shouldn’t we impose at least
pro–human rights in nature. It is probably some rehabilitative measures on any aggres-
correct to agree with him,however, when he sor? Given the serious nature of any act of
cautions that,as a matter of proportionality, aggression—so serious that, by Walzer’s
such measures are in order only in the most own lights, it justifies war—why should we
extreme cases, such as Nazi Germany at the refrain from imposing political reform upon
close of World War II.21 the defeated aggressor, unless its regime is as
If the actions of Aggressor during the war bad as that of the Nazis? After all,the imme-
were truly atrocious, or if the nature of the diate postwar environment would seem the
regime in Aggressor at the end of the war is perfect opportunity to pursue such reform,
still so heinous that its continued existence and presumably it would contribute to a
poses a serious threat to international justice more peaceful world order in the long run.
and human rights, then—and only then— The German and Japanese examples might
may such a regime be forcibly dismantled even be cited as evidence in favor of this.
and a new, more defensible regime estab- Some cited such cases in 1991, while arguing
lished in its stead. But we should be quick to that the allies in the Gulf War should have
note,and emphasize,that such construction
necessitates an additional commitment on 21 Walzer, Just and Unjust Wars, pp. 113, 119, 267-68.
the part of Victim and any Vindicators to 22 Leon V. Sigal, Fighting to the Finish: The Politics of
assist the new regime in Aggressor with this War Termination in the United States and Japan, 1945
(Ithaca: Cornell University Press, 1989); Howard B.
enormous task of political restructuring.
Schonberger, Aftermath of War: Americans and the
This assistance would be composed of see- Remaking of Japan, 1945-1952 (Ohio: Kent State Univer-
ing such “political therapy”through to a rea- sity Press, 1989); Michael Schaller, The American Occu-
sonably successful conclusion—which is to pation of Japan (Oxford: Oxford University Press, 1987);
and Eugene Davidson, The Death and Life of Germany:
say, until the new regime can stand on its An Account of the American Occupation (St. Louis: Uni-
own, as it were,and fulfill its core functions versity of Missouri Press, 1999).
50 Brian Orendmoved on to change the regime in Iraq, and theory, leaving some of the strictures of
not “merely” to have pushed it out of sovereignty behind in favor of augmenting
Kuwait. The reason Walzer hesitates to adherence to international values.24
affirm this more expansive view on forcible It is interesting to reflect on Afghanistan
rehabilitation is because of the great value in connection with these issues.A more rep-
he attaches to political sovereignty, to shared resentative interim government has been
ways of life, and to free collective choice— formed in the Taliban’s wake, and there has
even if these end up failing to express the been talk of partially secularizing and mod-
degree of domestic human rights fulfillment ernizing the education system, for instance
that we in Western liberal democracies by permitting the participation of girls and
might prefer. He cautions against “the terri- women. Foreign peacekeepers, though, cur-
ble presumption” behind external powers’ rently serve as the eff ective enforcers of law
deliberately changing domestic social insti- and order, external humanitarian aid is still
tutions, even in aggressors.23 needed simply to feed people, and much of
My ju d gm ent is that Walzer’s caution the country’s infrastructure has been
here may be too cautious, and that his reluc- ruined—by conflicts that started well before
tance to permit institutional restructuring the U.S.-led campaign. Moreover, the exact
may reveal the limitations of his strong details regarding the move from a merely
commitment to national sovereignty. I sug- “interim” government to a more stable sys-
gest that there should be a presumption in tem have yet to be clarified,and the support
favor of permitting rehabilitative measures in of some important communal leaders in
the domestic political structure of a defeat- parts of the country has yet to be secured.
ed aggressor. But such rehabilitation does We should also expect, to return to reha-
need to be proportional to the degree of bilitation in general, a formal apology by
depravity inherent in the political structure Aggressor to Victim and any Vindicator for
itself. This way, complete dismantling and its aggression. While it is right to agree with
constitutional reconstruction—like the sea Walzer that “official apologies somehow
change from totalitarian fascism to liberal seem an inadequate, perhaps even a per-
democracy—will probably be reserved for functory, way” of atoning for aggression,25
exceptional cases similar to those Walzer this is no reason to rule such an apology out
cites. But com p a ra tively minor renova- of the terms of the peace. For even though
tions—like human rights edu c a ti on pro- formal apologies cannot of themselves
grams, police and military retraining restore territory, revive casualties, or rebuild
programs, reform of the judiciary and
23 Walzer, Just and Unjust Wars, pp. xvii-xx.
bureaucracy into accountable institutions,
24 On Bosnia,see Rieff, Slaughterhouse; and the text of
external verification of subsequent election the Dayton Peace Agreement itself,at www.state.gov/
results, and the like—are permitted in any www/regions/eur/bosnia/bosagree.html, which ended
defeated aggressor, subject to need and pro- the war in November 1995. See also the text of the Ahtisaari
Accord,at www.nato/int/usa/policy/d 990609.htm, Ser-
porti on a l i ty. It is worthy of n o ti ce that
bia’s initial agreement in May 1999 to NATO’s terms on
many of the most recent peace treaties— ending its armed intervention in favor of the Kosovars.
like that ending the Bosnian civil war—have Also relevant is Alcira Kreimer et al., Bosnia and Herze-
included this more permissive principle in govina: Post-Conflict Reconstruction (Washington, D.C.:
World Bank, 2000);and Ruti G. Teitel, Transitional Jus-
favor of political reh a bi l i t a ti on . Political tice (Oxford: Oxford University Press, 2000).
activity here seems to be outpacing political 25 Walzer, “Untitled,” Dissent (1995), p. 330.
Justice after War 51infrastructure,they do mean something real ments to law and order, and basic human
to us. If not, why do formal apologies, and ri gh t s . In terms of war figh ti n g, having
victims’ campaigns to secure such apologies, rehabilitation as a war end does not some-
generate considerable political and media how diminish the responsibility to fight in
attention? If not, why do informed people accord with the jus in bello rules of ri gh t
know that Germany has apologized profuse- conduct. The importance of the end does
ly for its role in World War II whereas Japan not lessen the constraints just communities
has hardly apologized at all? Walzer must face when they vindicate their rights by
concede that we expect wrongdoers eventu- force. Will insistence on rehabilitation as
ally to admit their wrongdoing and to part of war set t l em ent itself prolong the
express their regret for it.We feel that victims fighting? While it might do so as a matter of
of wrongdoing are owed that kind of respect fact, relative to a less stringent or unjust
and that aggressors must at least show recog- s et t l em ent offer, seeing it through is not
nition of the moral principles they violated. wrong provided the fighting continues to
Apologies are a nontrivial aspect of a com- respect jus in bello. The duty falls on
plete peace treaty.26 Aggressor to agree to reasonable terms of
This perspective on rehabilitation—call- rehabilitation, not on Victim/Vindicator to
ing for disarmament, institutional reform, avoid seeking those means necessary to
political transform a ti on , i n f ra s tructure secure adherence to them.
investments, and official apologies—brings It is an implication of this discussion that
into focus important questions. Does it fol- the three sets of just war principles—of, in,
low from the above that the imposition of and after war—must not be applied sequen-
reh a bi l i t a ti on on an aggressor is itself a tially as each phase arises but, rather, con-
legitimate war aim? Can a just state set out, sidered together right from the start. There
from the start of the war, not only to vindi- needs to be a consistent commitment that
cate its violated rights but, in addition, to encompasses, from the outset, all three
impose institutional therapy upon the stages of a military engagement. Potential
aggressor? If so, what does that imply in participants in armed conflict should con-
terms of the use of force during war, since sider in advance whether it is likely that the
being in a position to impose institutional requirements of all three sets of just war
therapy after the war is at least linked to, principles can be satisfied prior to engaging
and may even depend on, the achievement in political violence.28
of a certain degree of military superiority at
war’s end? The therapy requires the
WAR CRIMES TRIALS
strength to see it through.27 My sense is that
the imposition of institutional therapy on This leaves the vexed topic of war crimes tri-
an aggressor is consistent with, even als, perhaps the one issue of justice after war
implied by, the overall goal of a justified that has already received searching atten-
war argued for previously, namely, ri gh t s tion. The normative need for such trials fol-
vindication constrained by a proportionate lows from Walzer’s dictum:“There can be no
policy on surrender. The therapy is justly
invoked when required to prevent future
26 Walzer, Just and Unjust Wars, p. 20.
aggression and to enable the defeated com- 27 I owe these questions to Michael Walzer.
munity to meet intern a ti onal commit- 28 Christian Barry rightly pushed me to point this out.
52 Brian Orendjustice in war if there are not, ultimately, Should political leaders on trial for jus ad
responsible men and women.”29 Individuals bellum violations be found guilty, through a
who play a prominent role during wartime public and fair proceeding, then the court is
must be held accountable for their actions at liberty to determine a reasonable punish-
and what they bring about. There are, of ment, which will obviously depend upon the
course, two broad categories of war crimes: details of the relevant case. Perhaps the pun-
those that violate jus ad bellum and those ishment will only consist of penalizing the
that violate jus in bello. leaders financially for the amount of com-
Jus ad bellum war crimes have to do with pensation owed to Victim,as previously dis-
“planning, preparing, initiating and wag- cussed. Or perhaps, should the need for
ing” aggressive war. Responsibility for the political rehabilitation be invoked, such
commission of any such crime falls on the leaders will need to be stripped of power and
shoulders of the political leader(s) of the barred from political participation, or even
aggressor regime. Such crimes, in the lan- jailed. Some figures in the Bosnian Serb
guage of the Nuremberg prosecutors, are community were, for instance, barred from
“crimes against peace.”30 What this princi- seeking office in the first postwar election.32
ple entails is that,subject to proportionality, It is not possible, a priori, to stipulate what
the leaders of Aggressor are to be brought to exactly is required with regard to such p er-
trial before a public and fair international sonal punishments. The point here is simply
tribunal and accorded full due process rights that the principle itself, of calling those most
in their defense.Why subject this principle responsible for the aggression to task for
of punishment to proportionality con- their crimes, must be respected as an essen-
straints? Why concur with Walzer when he tial aspect of justice after war. It is relevant to
says that “it isn’t always true that their lead- add that the actual enforcement of this prin-
ers ought to be punished for their crimes”?31 ciple might constitute a nontrivial deterrent
The answer is that sometimes such leaders, to future acts of aggression on the part of
in spite of their moral decrepitude, retain ambitious heads of state. If such figures have
considerable popular legitimacy, and thus good reason to believe that they will them-
bringing them to trial could seriously desta- selves, personally, pay a price for the aggres-
bilize the polity within Aggressor. NATO sion they instigate and order, then perhaps
forces, for example, held off for a long time they will be less likely to undertake such
on the seizure of prominent persons misadventures in the first place.
charged with war crimes in the former Important progress has recently been
Yugoslavia, presumably for reasons includ- made on this front. First, the former prime
ing this one. Care needs to be taken, as minister of Rwanda in late 1998 was found
always, that appeal to proportionality does guilty of war crimes and crimes against
not amount to rewarding aggressors, or to
letting them run free and unscathed despite 29 Walzer, Just and Unjust Wars, p. 288. See also W.
their grievous crimes. Yet this care does not Michael Reisman and Chris T. Antoniou, eds., The Laws
vitiate the ne ed to consider the destruction of War (New York: Vintage, 1994), pp. 317-405.
30 Walzer, Just and Unjust Wars, pp. 292-301.
and suffering that might result from adher- 31 Ibid., p. 123.
ing totally to what the requirements of jus- 32 The Dayton Peace Agreement, www.state.gov/www/
tice as retribution demand. regions/eur/bosnia/bosagree.html.
Justice after War 53humanity in connection with the brutal civil the very tempting position of punishing
war that consumed that country in the sum- only jus ad bellum war crimes. In order to
mer of 1994. Moreover, Serbian president avoid charges of applying a double standard
Slobodan Milosevic was formally indicted and exacting revenge, the justified side
by an international tribunal for committing must—despite the justice of its cause in
war crimes in May 1999, the first time a sit- fighting—also be willing to submit mem-
ting head of state has faced such a charge. In bers of its military for the commission of jus
June 2001, after losing power, Milosevic was in bello war crimes to an impartially con-
taken under arrest and transported to The structed international tribunal. We know
Hague for trial.33 that, in 1998, the international community
Jus ad bellum war crimes trials are not the voted in Rome to establish at The Hague a
only ones mandated by international law permanent court for the prosecution of war
and just war theory: attention must also, in crimes and other crimes against humanity.
the aftermath of conflict, be paid to trying Ratification of the Treaty of Rome is close at
those accused of jus in bello war crimes.Such hand, and before the end of 2002 an important
crimes inclu de : deliberately using indis- new international institution should be born.
criminate or disproportionate force; failing
to take due care to protect civilian popula-
PUBLICITY
tions from lethal violence; using weapons
that are themselves intrinsically indiscrimi- Do the terms of the settlement, as thus far
nate and/or disproportionate, such as those discussed, need to be public? On the one
of mass destruction; employing intrinsically h a n d , war set t l em ents of ten exert deep
heinous means, like rape campaigns; and i m p act on peop l e’s live s . Th ey are thu s
treating surrendered prisoners of war in an en ti t l ed to know the su b s t a n ce of pe ace
inhumane fashion, for example, torturing s et t l em en t s , and especially how such are
them. Primary responsibility for these war predicted to affect them. Immanuel Kant,
crimes must fall on the shoulders of those for one, was vehement about this publici-
soldiers, officers, and military commanders ty requirement in his famous writings on
who were most actively involved in their war.35 But someone might ch a ll en ge this
commission. Officers and commanders publicity principle, for instance, by citing
carry considerable moral burdens of their a counterexample. We know that part of
own during war time. They are duty-bound the reason why the Soviet Union backed
not to issue orders that violate any aspect of down during the Cuban Missile Crisis was
the laws of war. Fu rt h ermore, they must
plan military campaigns so that foreseeable
33 For more on war crimes trials,see Reisman and Anto-
civilian casualties are minimized, and must niou, eds., The Laws of War, pp. 317-405. See also Juan E.
teach and train their soldiers not only about M é n de z ,“ Na ti onal Reconciliation, Transnational Jus-
combat but also about the rules of just war tice, and the International Criminal Court,” pp. 25-44,
and Thomas Pogge, “Achieving Democracy,” pp. 3-23,
theory and the laws of armed conflict.34 both in Ethics & International Affairs 15, no. 1 (2001).
Something of note here is that, unlike jus 34 Walzer, Just and Unjust Wars, pp. 304-28.
ad bellum war crimes, jus in bello war crimes 35 Immanuel Kant, The Metaphysics of Morals, trans.
Mary Gregor (Cambridge: Cambridge University Press,
can be, and usually are, committed by all
1995), pp. 114-24; and Brian Orend, War and Interna-
sides in the conflict. So, care needs to be tional Justice: A Kantian Perspective (Waterloo: Wilfrid
taken that Victim and any Vindicator avoid Laurier University Press, 2000).
54 Brian Orendbecause of John F. Kennedy’s secret assur- be forced to sleep in later. In general, this rules
ances that the United States would remove out insistence on unconditional surrender.
missiles from Tu rkey short ly after the Rights Vindication. The settlement should
Soviets removed theirs from Cuba.36 But secure those basic rights whose violation
this instance does not deal with a full - triggered the justified war. The relevant
bl own war, mu ch less a postwar peri od , rights include human rights to life and lib-
and so it is not directly analogous. People erty and community entitlements to territo-
who have suffered through a war deserve ry and soverei gn ty. This is the main
to know what the substance of the settle- substantive goal of any decent settlement.
ment is. Respect for rights is a foundation of civiliza-
This does not mean that the people must tion, whether national or international. Vin-
explicitly and immediately endorse the pro- dicated rights, not vindictive revenge, is the
posed settlement, for instance through a order of the day.
plebiscite.Nor does it mean that the settlement Discrimination. Distinction needs to be
must be drafted up in a formal treaty. Both made between the leaders, the soldiers, and
things are clearly permissible, and perhaps the civilians in the country one is negotiat-
desirable as well: a show of popular support ing with. Civilians are entitled to reasonable
for a settlement might bolster its endurance; immunity from punitive postwar measures.
and writing out the peace terms can enhance This rules out sweeping socioeconomic
the clarity of everyone’s understandings and sanctions as part of postwar punishment.
expectations. But it seems needlessly stringent Punishment #1. When the defeated coun-
to insist that both phenomena must be there try has been a blatant, rights-violating
for the settlement to be legitimate. We can aggressor, proportionate punishment must
imagine numerous practical difficulties with be meted out. The leaders of the regime, in
running a plebiscite in the immediate postwar particular, should face fair and public inter-
period, and we can imagine communities that national trials for war crimes.
come to an understanding on the settle- Punishment #2. Soldiers also commit war
ment—even going so far as to adhere to it— crimes. Justice after war requires that such
without nailing down every possible soldiers, from all sides of the conflict, likewise
contingency in a detailed legal document. be held accountable at trial.
Compensation. Financial restitution may
be mandated, subject to both proportional-
S U M M A RY OF THE SET
ity and discrimination. A postwar poll tax
Perhaps it would be helpful to list the prof- on civilians is impermissible, and enough
fered set of settlement principles. A just resources need to be left so that the defeated
state, seeking to terminate its just war suc- country can begin its reconstructi on . To
cessfully, ought to be guided by all of the fol- beggar thy neighbor is to pick future fights.
lowing norms: Rehabilitation. The postwar environment
Proportionality and Publicity. The peace provides a promising opportunity to reform
settlement should be both measured and decrepit institutions in an aggressor regime.
reasonable, as well as publicly proclaimed.
To make a settlement serve as an instrument 36Martin Walker, The Cold War: A History (New York:
of revenge is to make a volatile bed one may Henry Holt, 1995), pp. 160-83.
Justice after War 55Such reforms are permissible but they must thought and effort as the purely military exit
be proportional to the degree of depravity in strategy so much on the minds of policy
the regime. They may involve: demilitariza- planners and commanding officers.
tion and disarmament; police and judicial One final aspect merits consideration: To
retraining; human rights education; and what extent can these principles of just war
even deep structural transformation toward settlement, developed mainly in a conven-
a peaceable liberal democratic society. tional interstate context, be applied to non-
Any serious defection, by any participant, trad i ti onal intrastate conflicts? This
from these principles of just war settlement question gains sharpness when we note that
should be seen as a violation of the rules of most recent conflicts seem to have b een of
just war termination,and so should be pun- the latter sort: brutal civil wars in Rwanda
ished. At the least, violation of such princi- and Bosnia; multifaction wars in central
ples mandates a new round of diplomatic Af ri c a ; a rm ed insurrection in Chechnya;
negotiations—even binding international and forcible armed intervention in Somalia
arbitration—between the relevant parties to and Kosovo. The short answer is that the
the dispute. At the very most, such violation extension of these principles is another proj-
may give the aggrieved party a just cause— ect.37 It remains important, though, to get
but no more than a just cause—for resuming the principles right in the more convention-
hostilities. Full recourse to the resumption al case, before moving on to the nonconven-
of hostilities may be made only if all the tional, and arguably more complex, ones.
other traditional criteria of jus ad bellum are The longer answer to the question is that,
satisfied in addition to just cause. with modifications, the principles devel-
oped here no doubt serve as a compelling
moral blueprint for application to these
C O N C LUSION: AN ETHICAL
other cases. Indeed,some attempt was made
“EXIT STRAT E G Y ” here to do just that, in connection with the
“war against terrorism” in Afghanistan. The
The topic of justice after war, or jus post bel-
principles offered here deal with the core
lum, has been somewhat neglected, yet has
controversies involved in any use of mass
recently b ecome prominent, even pressing,
political violence, and they capture precise-
in international relations. This article offers
ly those values and concepts we all employ to
one plausible set of just war settlement
reflect on,and speak intelligently about, the
norms, which communities seeking to con-
ethics of war and peace.
clude their just wars properly ought to obey.
The terms of a just peace should satisfy the
requirements listed above in the summary.
37See Nigel Biggar, ed., Burying the Past: Making Peace
There needs to be an ethical “exit strategy” and Doing Justice After Civil Conflict (Washington, D.C.:
from war, and it deserves at least as much Georgetown University Press, 2001).
56 Brian OrendYou can also read
