The Evolution of the Just War Tradition: Defining Jus Post Bellum

• Author: Major Richard P. DiMeglio
• Pages: 05

116 MILITARY LAW REVIEW [Vol. 186

THE EVOLUTION OF THE JUST WAR TRADITION: DEFINING JUS POST BELLUM

MAJOR RICHARD P. DIMEGLIO*

We do not seek peace in order to be at war, but we go to war that we may have peace.1

1. Introduction and Analytical Framework for the Article

   The field of international law is replete with theories and paradigms regarding the systemic causes of war.2 Regulations and manuals provide

   guidance on how a military must operate once thrust into a conflict.3

   Soldiers train repetitively on battle drills so they can understand and perform their wartime roles and responsibilities. In contrast to the voluminous material regarding causes of war and actions in war, there is a vacuum regarding proceedings after war termination. While the military forces of nations like the United States have clearly mastered how to fight and win wars, some people question what leaders know about achieving the peace.4

   This article uses the framework of an influential and historical perspective on force and morality, known as the just war tradition, to analyze what a just peace, or a jus post bellum, should look like. The just war tradition has traditionally focused solely in two realms: the circumstances under which a nation is morally justified to go to war (jus ad bellum) and the moral restraints imposed once a nation engages in war (jus in bello).5 There is, however, a third, largely historically neglected prong of the just war tradition, known as jus post bellum, which focuses on the issues regulating the end of war and the return from war to peace.6

   Unlike the first two prongs, which have defined criteria permitting moral discourse, the concept of jus post bellum is underdeveloped and does not yet contain established criteria for analyzing issues.

   Section II of this article provides a general historical background on the development and framework of the just war tradition. This section places the just war tradition in context with realist and pacifist perspectives and analyzes its contemporary use and misuse. It then defines the existing jus ad bellum and jus in bello principles to provide a larger context by which to later understand jus post bellum.

   After this introduction to the just war tradition, Section III offers a brief overview of the existing state of the law concerning post-conflict resolution. It highlights the paucity of guidance and the need for additional insight into post-war justice. Section III also examines the roots of jus post bellum in the just war tradition, noting the lack of defined criteria.

   Section IV presents proposals for jus post bellum criteria proffered by three leading just war scholars and theorists. The first is by theologian Michael Schuck, who was the first to present jus post bellum criteria in the aftermath of the 1991 Persian Gulf War.7 The second belongs to Professor Michael Walzer, widely viewed as the preeminent contemporary authority on just war.8 Third, Section IV provides the principles offered by Professor Brian Orend, the author of the most comprehensive proposed jus post bellum criteria.9

   Section V incorporates the overview of the just war tradition, the thoughts and proposals by the three scholars, international law, and recent lessons learned from military operations in Iraq and Afghanistan. The result is a proposal for three jus post bellum criteria. The first criterion recognizes a need to ensure that a post-war peace is, to the best extent possible, a lasting peace. It is of little moral value, and disproportionate to the costs of lives and resources expended, to permit a nation to justly engage in war and successfully terminate a conflict, and yet allow conditions to remain in place that would permit violence and aggression to erupt once again. The second standard seeks to deter future aggression by other leaders and provide closure for victims by

   demonstrating, through war crimes tribunals, that there are individual consequences for morally abhorrent behavior. The final principle also seeks to deter aggression and provide closure by requiring appropriate post-war reparations.

   This article seeks to help fill the current vacuum by using the general framework of the just war tradition to develop jus post bellum criteria to affect a just peace. As Rear Admiral Louis V. Iasiello, the Twenty-Third Chief of Navy Chaplains, notes:

   In an era when military victories on the battlefield are virtually assured for the United States and its allies, we must recognize the critical nature of post bellum operations and devote more attention to the development of a theory that will drive operational concerns in the post-conflict stages of occupation, stabilization, restoration, and other aspects of nation building. Thorough planning for this sometimes neglected aspect of war may ultimately save thousands of combatant and noncombatant lives, and quite possibly billions of dollars. The lessons of recent U.S. operations and today's geopolitical realities demand nothing less.10

2. Overview of the Just War Tradition

   Perhaps there never has been a totally just war. But then perhaps there never has been a totally virtuous person. Neither fact reduces the usefulness of clarifying the standards involved or having them in the first place.11

   A. Background on the Just War Tradition

   The just war tradition has been in perpetual evolution for nearly two thousand years; indeed, the very essence of the tradition requires constant scrutiny, appraisal, and refinement. Its origins were in early Christianity as a means to refute Christian pacifists and provide for certain, defined grounds under which a resort to warfare was both

   morally and religiously permissible.12 In the fifth century A.D, Augustine of Hippo (Saint Augustine) searched for a means to reconcile traditional Christian pacifism with the need to defend the Holy Roman Empire from the approaching vandals by military means.13 From Saint Augustine's initial writings providing for a limited justification for war, philosophers, theologians, theorists, and scholars including Saint Thomas Aquinas, Francisco de Victoria, Francisco Suarez, Hugo Grotious, and Immanuel Kant, have developed and advanced the theory, principles, and criteria over the course of nearly two millennia.14 The expansion continues today as just war scholars continue to apply moral reasoning within historical and contemporary perspectives to the issues of war and peace.15 This progression of ideas and debates, manifested today throughout religious writings, international laws, treaties and conventions, is collectively known as the just war tradition.16

   Brian Orend, a professor of philosophy at the University of Waterloo in Ontario, Canada, and a prominent contemporary just war theorist, describes the just war tradition in the following manner:

   Just war theory . . . offers rules to guide decision-makers on the appropriateness of their conduct during the resort to war, conduct during war and the termination phase of the conflict. Its over-all aim is to try and ensure that wars are begun only for a very narrow set of truly defensible reasons, that when wars break out they are

   fought in a responsibly controlled and targeted manner, and that parties to the dispute bring their war to an end in a speedy and responsible fashion that respects the requirements of justice.17

   Michael Walzer, a Professor at the Institute of Advanced Studies at Princeton University, and author of the 1977 seminal work on just war theory, Just and Unjust Wars,18 remarks on the enduring nature of the just war tradition: "Just war theory is not an apology for any particular war, and it is not a renunciation of war itself. It is designed to sustain a constant scrutiny and an immanent critique."19

   As an international paradigm, just war theory finds its niche squarely between the alternate extreme perspectives of realism and pacifism.20 A

   realist believes that war "is an intractable part of an anarchical world system; that it ought to be resorted to only if it makes sense in terms of national self-interest; and that, once war has begun, a state ought to do whatever it can to win."21 From a realist's vantage point, "if adhering to a set of just war constraints hinders a state in this regard, it ought to disregard them and stick soberly to attending to its fundamental interests in power and security."22 In short, for a realist, "[t]alk of the morality of warfare is pure bunk."23

   By contrast, pacifists find themselves on the opposite end of the use of force spectrum. A pacifist is of the persuasion "that no war is or could be just. . . . In short, pacifists categorically oppose war as such, though their reasons tend to vary."24 Professor Orend notes that a pacifist does not share a realist's "moral skepticism"25 concerning warfare and may agree with the just war tradition of applying ethical standards to conflict management. However, "pacifists differ from just war theorists by

   contending that the substance of such moral judgments is always that we should never resort to war."26 Although pacifism is a morally judicious theory of conflict management, it, like realism, provides little practical value to the contemporary international law practitioner.

   Some have claimed that the just war tradition embodies an inherently pacifistic presumption against war.27 This is untrue and is an inversion of the moral analysis; maintaining justice under the just war tradition may actually necessitate a call to arms.28 George Weigel, Senior Fellow of the Ethics and Public Policy Center in Washington, D.C., posits:

   If the just war tradition is a theory of statecraft, to reduce it to a casuistry of means-tests that begins with a "presumption against violence" is to begin at the wrong place. The just war tradition begins by defining the moral responsibilities of governments, continues with the definition of morally appropriate political ends, and only then takes up the question of means. By reversing the analysis of...