21 Jus Post Bellum and Human Rights – Part I

Rohini Sen

Learning Outcome

Students will be introduced to the concept of just war theory. The three components of just war theory are jus ad bellum, jus in Bello and just post bellum. The chapter will touch upon all the three modules and will explore post jus bellum in greater detail.

1. Introduction

War is actual, intentional and widespread armed conflict between political communities. It is a phenomenon that occurs solely between political communities. Political communities are defined as entities that are either States or intend to become States. However, conflict between two rival political communities within a State, certain political pressure groups, like terrorist organizations, might also be considered “political communities”. The two World Wars is an example of a classic war.

The Just War Theory justifies how and why wars are fought. The justification can either be theoretical or historical.

The theoretical aspect justifies war via ethics. It lists down the forms that warfare may or may not take. On the other hand, the historical aspect is about the tradition of just war. It is the body of rules and agreements that have been applied during the course of time. Examples: The Hague and Geneva agreements. They are historical rules that are aimed at limiting certain kinds of warfare.

The three components of the Just War theory are –

– Jus Ad Bellum (The right to go to war)

– Jus in Bello (The right conduct in war)

– Jus Post bellum (Justice after war)

The just war tradition encompasses a set of mutually agreed rules of combat. This evolves between two culturally similar enemies. For instance, if two countries share similar values, they implicitly or explicitly agree on the same limits to warfare. The problem arises when the enemies have stark difference due to different religious beliefs, race and language. The problem is further compounded when one country sees itself as superior and the other country as “less than human”. War conventions are rarely applied in such situations. It is preferable that most countries agree to these rules and conventions. For instance, the deployment of any underhand tactics or weapons may provoke an indefinite series of vengeance acts. Or, it may provoke acts that are detrimental to the political and moral interests to both the sides.

The main concern of just war theorists is that, the rules of war should apply to all equally. The theory must be universal and must be binding on all parties. It should be above any historically formed conventions.

II. History

The history of the theory and warfare are intertwined. Early records of collective fighting indicate that warriors had a few moral considerations to limit the outbreak. This involved, consideration of women and children and treatment of prisoners. For instance, instead of killing prisoners, they would have been enslaved or exchanged. These considerations were also based on “honourable” and “dishonourable” acts of war.

These notions are highly culture-specific. A suicidal attack or defines may be deemed a honourable act for one culture but may be perceived to be exactly the opposite for another set of people.

The Bible hints at ethical behaviour in war and concepts of just cause. St. Augustine, an early Christian theologian, spoke about the morality of war from the Christian perspective. However, St. Thomas Aquinas provided a more systematic outline of what becomes traditional just war theory. His thoughts became the model for later scholars to expand and universalize the idea of just war.

With the advent of nuclear weaponry and American involvement in the Vietnam War, the just war theory has undergone a revival. Since 9/11, academics have turned their attention to just war. Various international, national, academic and military conferences are being conducted and consolidating the theoretical aspects of these conventions.

III. Just war theory and its branches

Just War theory can be broadly be classified as just ad bellum (the right to go to war) , just in bello (the right conduct in war) and just post bellum (justice after war).

1. Jus ad bellum

Political leaders are the ones who inaugurate wars. The rules of jus ad Bellum, therefore, are primarily for the heads of the State. While setting their armed forces in motion, they are to be held accountable for jus ad Bellum rules. If they fail to do so, they commit war crimes. What constitutes a just and an unjust war is laid down by the rules of jus ad bellum. Just war theory states that, for any war to be justified, a political community, or state must fulfill six requirements

(i) Just cause

This is the most important rule. The just causes most frequently mentioned include: self defines from external attack, the defence of others from such external attack, the protection of innocents from brutal, aggressive regimes and punishment for a grievous wrongdoing that remains uncorrected.

(ii) Right intention

A State must intend to fight the war only for the sake of its just cause. Merely having the right reason to launch the war isn’t enough. The actual motivation behind the resort to war must be morally appropriate. Ulterior or irrational motives, such as revenge or ethnic hatred are ruled out.

(iii) Proper authority and public declaration

A State can go to war only if; the decision to go to war must be made only by public authorities. Further, it must be made according to proper process and must be made public, to its citizens and enemy state. The appropriate authorities who can do this is mentioned in that country’s constitution. If a State fails the requirement of minimal justice, it lacks the legitimacy to go to war.

(iv) Last resort

The States should see war as the last resort. Every other peaceful and plausible alternative to resolve the conflict must have been exhausted.

(v) Probability of success

If a State can foresee that going to war will have no measurable impact on the situation, it may NOT go to war.

(vi) Proportionality

Prior to a war, the States must weigh the universal goods against the universal evils. That is, critically evaluate the results expected from a war, such as securing a just cause vs the mass violence and causalities.

2. Jus in bello

Jus in bello refers to justice in war. That is, the rights conduct in the midst of battle. The responsibility for State adherence to jus in Bello norms falls primarily on the shoulders of military commanders and officers who execute the war policy of a particular state. They will be held responsible for any breach of the principles that follow below. This includes being put on trial for war crimes either by one’s own national military justice system or by the International Criminal Court.

There are two types of jus in bello; external and internal. A brief overview of the rules is listed here.

• Obey all international laws on weapons prohibition: Chemical and biological weapons, in particular, are forbidden by many treaties. Nuclear weapons aren’t prohibited, but the international community would greet anyone who uses them with incredible hostility.
• Discrimination and Non-combatant immunity: Soldiers must discriminate between the civilian population and legitimate military, political and industrial targets involved in conflict.
• Proportionality: Soldiers are to use proportional force to the end they seek.
• Benevolent quarantine for prisoners of war: If enemy soldiers surrender and become captives, they are no longer threats to basic rights. It is wrong to perpetrate violence on these soldiers.

The underlying principle of jus in Bello is to respect the human rights of its own citizens as much as it can during a crisis.

3. Jus post bellum

After a war, three possibilities emerge:

• Either the army has been defeated,
• Has been victorious
• Or a ceasefire occurs

Jus post bellum refers to the justice during the third and final stage of war. This deals with war termination. It regulates the ending of wars. Further, it aids in the crucial transition from a state of war and turmoil to peace.

Other than a little occupation with law and human rights treaties, there is little international law involved here. A majority of the jus post bellum theory relies on moral resources of the just war theory. The problem however, is that this theory has not dealt with to the degree that it should.

The Principles of jus post bellum

Here are the proposed principles for the concept of jus post bellum:

Proportionality and Publicity. The peace settlement arrived at should be measured and reasonable. Further, it should be publicly proclaimed. The settlement that is made to serve as an instrument of revenge is futile. In general, this rules out insistence on unconditional surrender.

Rights Vindication. The settlement should secure the basic rights of whose violation triggered the justified war. It is important to secure human rights such as right to life and liberty and community entitlements to territory and sovereignty. The main substantive goal of any decent settlement is to ensure that the war will have an improving effect. The foundation of every civilization is a respect of rights. Vindicating rights and not vindictive revenge is the order of the day.

Discrimination. A distinction needs to be made between the leaders, the soldiers and the civilians in the defeated country. Socio-economic measures are an integral part of post-war punishment. This is because, irrespective of the politics of the war, civilians are entitled to reasonable immunity.

Punishment #1. Proportionate punishment must be meted out to countries that have blatantly violated rights. The leaders of such regimes should face fair and public international trials for war crimes.

Punishment #2. War crimes are not restricted to just to political and military leaders. Soldiers commit war crimes, as well. The principles of jus post bellum require that such soldiers must be held accountable to investigation and possible trial. It does not matter which side of the conflict the soldier is from.

Compensation. According to both proportionality and discrimination, financial restitution may be mandated. A post-war tax is usually levied on the civilians and is permissible. However, there needs to be enough resources left for the defeated country to begin its own reconstruction.

Rehabilitation. The post-war environment provides a promising opportunity to reform decrepit institutions. These reforms are permissible as long as they are proportional to the degree of depravity in the country in question. The measures usually undertaken are demilitarization  and  disarmament,  police  and  judicial  re-training  and  human  rights education. Further, it requires a deep transformation towards a minimally just society. This society is governed by a legitimate regime.

This is the most controversial regime of jus post bellum – establishing legitimacy in a post-war society.

The terms of a just peace should satisfy all these requirements. There needs, in short, to be an ethical “exit strategy” from war, and it deserves at least as much thought and effort as the purely military exit strategy so much on the minds of policy planners and commanding officers.

Any serious defection, by any participant, from these principles of just war settlement, should be seen as a violation of the rules of just war termination, and so should be punished. At the least, violation of such principles mandates a new round of diplomatic negotiations— even binding international arbitration—between the relevant parties to the dispute. At the very most, such violation may give the aggrieved party a just cause—but no more than a just cause—for resuming hostilities. Full recourse to the resumption of hostilities may be made only if all the other traditional criteria of jus ad bellum—proportionality, last resort, etc.—are satisfied in addition to just cause.

Perhaps a few additional thoughts on coercive regime change should here be added, in light of controversial recent events, especially in Afghanistan and Iraq. Can coercive regime change ever be justified, or is it essentially an act of imperialism? In my view, forcible post-war regime change can be permissible provided:

• The war itself was just and conducted properly;
• The target regime was illegitimate, thus forfeiting its state rights;
• The goal of the reconstruction is a minimally just regime; and
• Respect for jus in bello and human rights is integral to the transformation process itself. The permission is then granted because the transformation: 1) violates neither state nor human rights; 2) its expected consequences are very desirable, namely, satisfied human rights for the local population and increased international peace and security for everyone; and 3) the post-war moment is especially promising regarding the possibilities for reform. And the transformation will be successful when there’s: 1) a stable new regime; 2) run entirely by locals; which is 3) minimally just.

There is extensive historical evidence that this kind of success probably takes from 8 to 12 years to achieve (essentially, a decade). Note that successful, rights-respecting coercive regime change can be done, contrary to some pessimistic views; it was actually done in Germany and Japan from 1945-55, and so it is neither conceptually nor empirically impossible. It’s very difficult, to be sure—and, in some cases, it’s not a wise thing to do—but it’s not literally impossible.

A review of the literature suggests something of a 10-point recipe for transforming a defeated aggressive regime into one, which is minimally just:

• Adhere diligently to the laws of war during the regime take-down and occupation.
• Purge much of the old regime, and prosecute its war criminals.
• Disarm and demilitarize the society.
• Provide effective military and police security for the whole country.
• Work with a cross-section of locals on a new, rights-respecting constitution which features checks and balances.
• Allow other, non-state associations, or “civil society”, to flourish.
• Forego compensation and sanctions in favour of investing in and re-building the economy.
• If necessary, re-vamp educational curricula to purge past poisonous propaganda and cement new and better values.
• Ensure, in a timely fashion, that the benefits of the new order will be: 1) concrete; and 2) widely, and not narrowly, distributed. The bulk of the population must feel their lives after the regime change are clearly better than their former lives for the change to be sustainable.
• Follow an orderly, not-too-hasty exit strategy when the new regime can stand on its own two feet. Again, this will probably take a decade of intensive effort.

Conclusion:

The main aim of the theory is to ensure that wars are begun only on the basis of a very narrow set of reasons. These reasons must be truly defensible. In the event that a war breaks out, they must be fought in a controlled and responsible manner. Further, parties to the dispute must bring the war to an end in a manner that respects the requirements of justice.

Reference

1. Robert E. Williams Jr and Dan Caldwell, Jus Post Bellum: Just War Theory and the Principles of Just Peace, 1st November 2006. http://onlinelibrary.wiley.com/doi/10.1111/j.1528- 3585.2006.00256.x/abstract?deniedAccessCustomisedMessage=&userIsAuthenticated=false
2. Stanford Encyclopedia of Philosophy- http://plato.stanford.edu/entries/war/#2.3