Just War and Post War Justice

By Tobias Winright 

In their new book, The Police in War: Fighting Insurgency, Terrorism, and Violent Crime (Boulder: Lynne Rienner Publishers, 2010), David H. Bayley and Robert M. Perito highlight how ill-prepared the U.S. was for what happened after the Army’s Third Infantry Division reached Baghdad’s downtown on April 9, 2003.  Although the White House and the Defense Department both “assumed that coalition forces would inherit a fully functioning state with its institutions intact…, the Iraqi police and all government authority simply vanished” (6).  With such a security vacuum, crowds inundated the streets, looting and ransacking the city’s business district, museums, hospitals, and government buildings—all while U.S. military forces stood by and watched.  Of course, it wasn’t the troops’ fault, since they “were neither trained nor equipped to perform police functions” (8).   

Prior to the action in Iraq, General Jay Garner suggested having a coalition of U.S.-led international constabulary and police forces ready, but the White House and the Defense Department rejected his recommendation, asserting instead that American troops would be welcomed with “sweets and flowers” (8).  A lesson needs to be learned here, one that actually should have been kept in mind from other recent U.S. military interventions, including Panama, where a similar lack of law and order led to dire consequences, and Haiti, where such policing was provided for and proven successful. 

Former rear admiral Louis Iasiello has written, “Victors have a moral obligation to ensure the security and stabilization of the defeated society.”  Doing so, he argues, is an important component of jus post bellum, or post war justice.  Boston College Catholic theological ethicist Kenneth Himes, OFM, similarly calls for attention to justice after the shooting “stops,” and he also emphasizes 

the work of securing domestic peace through protection of civil liberties and human rights, as well as helping to organize police and judicial institutions so that the necessary social space is created for men and women to begin the work of restoring public life.

This concern about security in the immediate wake of military actions is but one example of how theologians, ethicists, military experts, political scientists, philosophers and others are devoting serious thought today to what is being called jus post bellum

The wars in Afghanistan and Iraq were pitched by the Bush administration to the American people and the world as just wars.  The just war tradition is the centuries-old gold standard for morally evaluating war.  Most Christian denominations subscribe to this ethical framework, even as they are more and more commending nonviolence as a viable alternative.  Just war reasoning also rests behind much of the modern international laws of war.  Over time, this tradition has come to consist of several criteria—though the lists vary depending on the source—to be used to evaluate morally when and how war may be justly embarked upon and conducted.  A war is considered just if these criteria are adhered to and satisfied.  Although classical just war thinkers did not explicitly do so, modern articulations of just war theory divide the criteria into two primary categories, referred to by their Latin names: jus ad bellum and jus in bello. The jus ad bellum category consists of criteria that must be met in order for it to be justified to embark upon war; whereas, the jus in bello category includes criteria concerning just conduct during the war.  In their pastoral letter from 1983, The Challenge of Peace, the U.S. Catholic bishops included under jus ad bellum the criteria of: 

  • just cause
  • right intention
  • legitimate authority
  • probability of success
  • last resort
  • comparative justice
  • proportionality

Encompassed under jus in bello are two criteria: discrimination (or, noncombatant immunity) and proportionate force.  Taken together, these criteria are meant to ensure that there is justice when entering into war and justice in the way that the war is conducted.  However, if Christians and others are going to continue to view armed intervention as sometimes justified, there not only ought to be criteria to help warrant such forceful actions and criteria to govern conduct during these interventions, but also criteria for establishing a just and lasting peace (jus post bellum).

This postwar dimension is just now beginning to garner the attention of church leaders. For example, in “Toward a Responsible Transition in Iraq,” a statement released on January 12, 2006, Bishop Thomas G. Wenski, who was chairman of the U.S. Catholic Bishops’ Committee on International Policy, wrote,

 It is important for all to recognize that addressing questions regarding the decisions that led us to war, and about the conduct of war and its aftermath, is both necessary and patriotic.

Similarly, in their 2007 document, Forming Consciences for Faithful Citizenship, the bishops called on nations to find ways to prevent conflicts, to resolve them by peaceful means, “and to promote reconstruction and reconciliation in the wake of conflicts.”  Yet, while criteria already exist for addressing questions about the decisions leading to and the conduct during war, there are none concerning its aftermath. 

Of course, the just war tradition has not been completely blind to post war ethics.  Some ancient religious examples of just war thought prohibited poisoning wells, salting fields, and cutting down fruit and olive trees because such actions extend the effects of war well beyond the period of active combat.  Plato exhorted the Greeks to fight “as those who intend someday to be reconciled,” and he advised against constructing monuments to honor the victors of war, because this might fuel hard feelings on the part of the defeated.  Cicero also called for magnanimity from the Romans:

Not only must we show consideration for those whom we have conquered by force of arms but we must also ensure protection to those who lay down their arms and throw themselves upon the mercy of our generals.

Similar attention to post war justice subsequently was offered, though sporadically, in the Christian tradition by Augustine, Francisco de Vitoria, Francisco Suarez, and Hugo Grotius.

Nevertheless, jus post bellum has not gotten the same serious and systematic treatment over the centuries enjoyed by jus ad bellum and jus in bello.  In After the Smoke Clears: The Just War Tradition and Post War Justice, my coauthor Mark Allman and I argue for the permanent inclusion of jus post bellum in the just war tradition, and we propose four criteria or commitments that complement the jus ad bellum and jus in bello categories of just war: 

  • just cause
  • reconciliation
  • punishment
  • restoration

These are not to be understood in any particular chronological sequence or order of importance.  All should be implemented in tandem and more or less concurrently.

The first criterion is just cause.  The result of any just war should be the accomplishment of the objectives that served as the grounds for just cause in the jus ad bellum phase. Moreover, satisfying the just cause demands is different from returning to the status quo ante bellum, which is precisely what led to war in the first place.  The goal of a just war must be to establish social, political, and economic conditions that are more stable, more just, and less prone to chaos than what existed prior to the fighting. The just cause principle has three primary theoretical objectives: 1) hold parties accountable until the mission is accomplished; 2) restrain parties from seeking additional gains; and 3) stem overly zealous post bellum responses.  In practice, this criterion entails both the return of unjust gains and the prohibition of unconditional surrenders.

The second criterion is reconciliation.  If the primary objective of a just war is a just and lasting peace, then there can be no peace without reconciliation. The goal of reconciliation is to transform a relationship of animosity, fear, and hatred into one of tolerance, if not respect, to turn enemies into friends, and to bring emotional healing to the victims of war.  For Catholic Christians, there are parallels here with the sacrament of reconciliation, or penance.  Moreover, the paradigm of restorative justice informs this criterion and its attendant practices.  This phase is not about cheap grace or taking a “forgive and forget” approach.  It involves acknowledgment of wrongdoing, admission of responsibility, punishment, forgiveness and perhaps amnesty.  Ideally, reconciliation should lead to the return to communion of the offending party.  The goal of reconciliation, in short, is justice tempered by mercy.  In practice, the reconciliatory aims can be promoted through ceasefire agreements, restrained postwar celebrations, public and transparent postwar settlement processes, and apologies. 

The third jus post bellum criterion is punishment.  Here the primary objectives are justice, accountability, and restitution.  The legitimacy of punishments depends on several factors: publicity and transparency (punishments ought to be meted out through public forums to which many, if not all, have access); proportionality and discrimination (appropriate punitive measures ought not be excessively debilitating and must make distinctions based on level of command and culpability); and legitimate authority (punishments ought to be assigned by an authority that is recognized as legitimate by all sides).  In all likelihood, the legitimacy of the punishment phase depends on an independent authority (a third party) in order to avoid even the appearance of a victor acting as judge, jury, and executioner of the vanquished.  In practice, the punishment phase involves compensation (restitution) and war crimes trials. 

The fourth criterion is restoration.  The goal of a just war is not simply the cessation of violence, but political, economic, social, and ecological conditions that allow citizens to flourish.  In other words, a just war should seek to create an environment that permits citizens to pursue a life that is meaningful and dignified.  Doing so involves a number of practical concerns, including providing and establishing security, policing, and the rule of law; enabling sufficient political reform whereby a functional government can promote the common good and provide public services such as education, health care, and electricity; fostering economic recovery by helping with the transition from a postwar to a peacetime economy; providing social rehabilitation for people who have been victimized by war and soldiers who may suffer from injuries and trauma; and ecological cleanup efforts to address the lingering pernicious effects of weapons such as cluster munitions on peoples’ lives and livelihoods. 

It is our hope that this account of jus post bellum not only adds to the current interdisciplinary conversation that is already underway, but also becomes a lasting and integral component in Christian theological reflection on just war. We intend for these criteria of jus post bellum to enrich and to buttress the just war tradition—to give it more teeth, as Mennonite pacifist theologian John Howard Yoder called upon Christian just war proponents to do—by emphasizing that moral responsibility for war does not come to a halt when combat ends.

Tobias Winright is associate professor of theological ethics at Saint Louis University in St. Louis, Missouri.

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