The evolution of the just war tradition: Defining jus post bellum

Military Law Review

Volumn 186, Issue , 2005, Pages 116-163

  DiMeglio, Major Richard P ^a  

^a NONE

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EID: 33847375196     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (181)

1. JAMES TURNER JOHNSON, MORALITY AND CONTEMPORARY WARFARE 33 (1999) (quoting Letter from Saint Augustine to Count Boniface (A.D. 416), in SUMMA THEOLOGICA (Benziger Bros. Ed. 1947)).
2. See JOHN NORTON MOORE, SOLVFNG THE WAR PUZZLE: BEYOND THE DEMOCRATIC PEACE (2004) (offering a contemporary paradigm on the cause of war, entitled Incentive Theory). Professor Moore, Professor of International Law at the University of Virginia School of Law, posits that major wars arise as a result of the synergy between an absence of democracy and an absence of effective deterrence at the national and international levels against aggressive nondemocratic nations, along with a failure to provide a proper set of incentives to the individual decision makers leading those nondemocratic nations. See id. at xx. Professor Moore defines "major war" as a conflict incurring over 1000 total casualties. Id. at xviii.
3. For an overview of U.S. doctrine on operations and legal support to operations, see U.S. DEP'T OF ARMY, FIELD MANUAL 1, THE ARMY (14 June 2001); U.S. DEP'T OF ARMY, FIELD MANUAL 3.0, OPERATIONS (June 2001); U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS (1 Mar. 2000). For more specific guidance on peace operations, see U.S. DEP'T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS AND SUPPORT OPERATIONS (Feb. 2003); JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, TECHNIQUES AND PROCEDURES FOR PEACE OPERATIONS (12 Feb. 1999).
4. Rear Admiral Louis V. Iasiello, the Twenty-Third Chief of Navy Chaplains, points to current problems in Iraq and Afghanistan. Despite the impressive and overwhelming military victories by the United States and Coalition partners, he wonders: "Why has the post bellum phase of these conflicts proved such a challenge to the victors of battle?" Rear Admiral Louis V. Iasiello, Jus Post Bellum: The Moral Responsibilities of Victors in War, 57 NAVAL WAR C. REV. 33, 33-34 (2004). Ekaterina Stepanova, a senior associate at the Center for International Security, Institute of World Economy and International Relations, in Moscow, adds: "The crisis in Iraq has . . . demonstrated the failure of unprecedented military might unconstrained by international legal norms and backed by technological and economic superiority to achieve a just and durable peace after the war - a challenge no less complex or ambitious than effectively waging war." Ekaterina Stepanova, War and Peace Building, 27 WASH. Q. 127, 127-28 (2004).
5. See JOHNSON, supra note 1, at 27.
6. See Iasiello, supra note 4, at 34.
7. See infra Part IV.A (providing Professor Schuck's criteria).
8. See infra Part IV.B (providing Professor Walzer's criteria).
9. See infra Part IV.C (providing Professor Orend's criteria).
10. Iasiello, supra note 4, at 34.
11. W. L. LACROIX, WAR AND INTERNATIONAL ETHICS: TRADITION AND TODAY 141 (1988).
12. See MICHAEL WALZER, ARGUING ABOUT WAR 3 (2004).
13. See JAMES TURNER JOHNSON, CAN MODERN WAR BE JUST? 1 (1984).
14. See JOHNSON, supra note 1, at 14-15, 24; Brian Orend, War, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2002), available at http://plato.stanford.edu/entries/war/. See generally PETER S. TEMES, THE JUST WAR: AN AMERICAN REFLECTION ON THE MORALITY OF WAR IN OUR TIME 41-75 (2003) (providing additional insight concerning the founders of the just war tradition). The just war tradition reached its peak of influence alongside the rise of the Roman Catholic Church in the Middle Ages. After the Peace of Westphalia in 1648, ending the Thirty Years War, the power of the Church to influence decisions on warfare began to wane, and with the emergence of the state as an independent sovereign and international actor, nations began to arbitrate independently about the justness of war, with predictable results. See JOHNSON, supra note 1, at 52-54.
15. See JOHNSON, supra note 13, at 12. Professor James Turner Johnson argues that the just war tradition should not be viewed as "doctrine" requiring a positivist approach, but rather, it "requires active moral judgment within a historical context that includes not only the contemporary world but the significantly remembered past." Id.
16. See Iasiello, supra note 4, at 36-37; see also JOHNSON, supra note 1, at 30 (linking just war principles to positivist international law).
17. Orend, supra note 14.
18. MICHAEL WALZER, JUST AND UNJUST WARS (1977).
19. WALZER, supra note 12, at 22.
20. See BRIAN OREND, WAR AND INTERNATIONAL JUSTICE: A KANTIAN PERSPECTIVE 44 (2000) ("There seem, at bottom, to be three basic perspectives on the ethics and legality of war and peace, with realism and pacifism at the extremes and just war theory in the middle.").
21. Id.
22. Id.
23. Orend, supra note 14 (listing a number of prominent realists, to include Thucydides, Machiavelli, Hobbes, Hans Morgenthau, Henry Kissinger, and Kenneth Waltz).
24. OREND, supra note 20, at 47.
25. Orend, supra note 14.
26. OREND, supra note 20, at 47.
27. See JOHNSON, supra note 1, at 34-36 (mentioning and then refuting these claims).
28. See Michael Novak, The Rule of Law in Conflict and Post-Conflict Situations: Just Peace and the Asymmetric Threat: National Self Defense in Uncharted Waters, 27 HARV. J.L. & PUB. POL'Y 817, 827-28 (2004). Novak, a theologian, author, and former U.S. Ambassador, notes: According to St. Augustine, fallen human nature being what it is, there will always be a presumption that generation after generation some evil men will choose disorder, violence, and unjust aggression. At times, the only way to restore order will be to use war as a just instrument of statecraft. Id. at 828. He adds that the just war tradition may even embrace a preemptive attack underpinning: The just war tradition does not begin "with a presumption against war or violence," but with the presumption that the protection of international order in every generation is likely to require either going to war for the sake of restoring justice, or (better) at least the intimidating and well-honed capacity to fight just wars successfully, in order to prevent them in advance. Id. at 832-33.
29. George Weigel, Moral Clarity in a Time of War, 2003 FIRST THINGS 128, 20-27, available at http://www.firstthings.com/ ftissues/ft0301/articles/weigel. html.
30. JOHNSON, supra note 1, at 35.
31. See OREND, supra note 20, at 8. Professor Orend discusses some of the skepticism facing just war theorists today. There is, so to speak, a certain smell about just war theory that any defender of it must deal with, even prior to enunciating anything substantive. Three of the most commonly held beliefs of these skeptics, in this regard, are: 1) mat just war theory is irredeemably tainted by its origins in Catholic doctrine; 2) that just war theory is dated and irrelevant; and 3) that just war theory is so liable to abuse as to be nothing more than a cloak with which to hide, or even justify, the commission of great evils, and by no less dubious an institution than the modem nation-state. Id; see also JOHNSON, supra note 1, at 223-27 (refuting the criticism that the just war tradition's emphasis on placing limits on warfare is irrelevant in an age of nuclear weapons and total warfare); Yoram Dinstein, The Rule of Law in Conflict and Post-Conflict Situations: Comments on War, 27 HARV. J.L. & PUB. POL'Y 877, 879-80 (2004) (arguing that the just war tradition is irrelevant today because only the Security Council, acting under the authority of the Charter of the United Nations, may authorize the use of force). But see YEHUDA MELZER, CONCEPTS OF JUST WAR 39 (1975) (providing for a role for the just war tradition alongside the Charter by observing that "the aim of the United Nations is to secure peace.... It is not to achieve and maintain justice").
32. See OREND, supra note 20, at 8.
33. Id. at 9.
34. See id. at 8. For example, it is common for leaders to use the jus ad bellum principles when referring to having a "just cause" for military actions or debating whether there was a situation of "last resort" requiring military intervention. See infra note 35; see generally Jimmy Carter, Editorial, Just War - or a Just War?, N. Y. TIMES, Mar. 9, 2003, § 4, at 13 (employing the jus ad bellum criteria to argue that the then impending war against Iraq would be unjust on every prong); William Jefferson Clinton, A Just and Necessary War, N.Y. TIMES, May 23, 1999, at W17 (utilizing just war terminology to portray the situation in Kosovo).
35. President George W. Bush and Senator John Kerry, Presidential Debate at St. Louis, Missouri (Oct. 8,2004) (transcript available at http://wid.ap.org/ transcripts/debates/prez2. html.) President Bush said: "I remember going down to the basement of the White House on the day we committed our troops as last resort...." Id. Senator Kerry stated: I believe the President made a huge mistake ... not to live up to his own standard... and go to war as a last resort. I ask each of you just to look into your hearts, look into your guts. Gut-check time. Was this really going to war as a last resort? Id.; see also President George W. Bush and Senator John Kerry, Presidential Debate at Coral Gables, Florida (Sept. 30,2004) (transcript available at http://wid.ap.org/transcripts/debates/prez1.html. President Bush said: "But a President must always be willing to use troops. It must - as a last resort." Id. Senator Kerry replied: [President Bush] promised America that he would go to war as a last resort. Those words mean something to me, as somebody who has been in combat. Last resort. You've got to be able to look in the eyes of families and say to those parents, I tried to do everything in my power to prevent the loss of your son and daughter.... [President Bush] misled the American people when he said we'd go to war as a last resort. We did not go as a last resort. And most Americans know the difference. Id. Unfortunately, most politicians do not themselves understand the difference and the actual requirements of "last resort" under the just war tradition. Professor Johnson provides a clarification of this jus ad bellum criterion: It is important to note that the criterion of last resort does not mean that all possible non-military options that may be conceived of must first be tried; rather, a prudential judgment must be made as to whether only a rightly authorized use of force can, in the given circumstances, achieve the goods defined by the ideas of just cause, right intervention, and the goal of peace, at a proportionate cost, and with reasonable hope of success. Other methods may be tried first, if time permits and if they also satisfy these moral criteria; yet this is not mandated by the criterion of last resort - and 'last resort' certainly does not mean that other methods must be tried indefinitely. JAMES TURNER JOHNSON & GEORGE WEIGEL, JUST WAR AND THE GULF WAR 29 (1991).
36. See generally WALZER, supra note 12, at 3-15. Professor Walzer observes how the success of the just war theory can unintentionally undermine its integrity. See id. Professor Walzer remarks that when politicians and military generals start defining their actions in terms of just war principles, it can result in "a certain softening of the critical mind, a truce between theorists and soldiers" that can weaken the scrutiny that must be applied to the principals. Id. at 15. But see Weigel, supra note 29 (arguing that politicians must provide input into the just war tradition). Weigel states: If the just war tradition is indeed a tradition of statecraft, then the proper role of religious leaders and public intellectuals is to do everything possible to clarify the moral issues at stake in a time of war, while recognizing that what we might call the "charism of responsibility" lies elsewhere - with duly constituted public authorities, who are more fully informed about the relevant facts and who must bear the weight of responsible decision-making and governance. It is simply clericalism to suggest that religious leaders and public intellectuals "own" the just war tradition in a singular way. Id.
37. OREND, supra note 20, at 10.
38. Id. at 10. Professor Orend attributes this phrase to Professor Bonnie Kent of Columbia University's Philosophy Department. See id. at 11 n.6.
39. See BRIAN OREND, MICHAEL WALZER ON WAR AND JUSTICE 4 (2000).
40. See id.
41. WALZER, supra note 18 at 21.
42. OREND, supra note 20, at 50. Professor Orend adds that "the jus ad bellum criteria are thought to be the preserve and responsibility of political leaders whereas the jus in bello criteria are thought to be the province and responsibility of military commanders, officers and soldiers." Id.
43. Id. at 48-49.
44. See OREND, supra note 39, at 87. There is no one authoritative list of the jus ad bellum criteria. The number and titles of the criteria vary slightly among scholars; however, these six are the most commonly used. Some just war theorists add a seventh criterion. Professor Orend lists these six criteria but adds a seventh factor of comparative justice. See OREND, supra note 20, at 49. "The idea here is that every state must acknowledge that each side to the war may well have some justice in its cause. Thus, all states are to acknowledge that there are limits to the justice of their own cause, thus forcing them to fight only limited wars." Id; see also JOHNSON, supra note 1, at 27-29 (including a seventh criterion requiring that a nation wage war for the "aim of peace"); Iasiello, supra note 4, at 37 (adding a seventh criterion of "a formal declaration of war"); Thomas A. Shannon, What is 'Just War' Today?, CATH. UPDATE (May 2004), available at http:// www.americancatholic.org/Newsletters/CU/ac0504.asp (listing comparative justice as a seventh criterion).
45. See Orend, supra note 14.
46. OREND, supra note 20, at 49.
47. See supra notes 34-36 and accompanying text (discussing the use of the jus ad bellum principles by politicians and military leaders).
48. See JOHNSON, supra note 1, at 24. For example, the criterion of just cause permits a nation to respond in self-defense when confronted with an external armed attack. See supra note 46 and accompanying text (discussing just cause). This parallels the general concepts embodied in Articles 2 and 51 of the U.N. Charter. Article 2(3) of the U.N. Charter states: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." U.N. Charter art. 2, para. 3. Article 2(4) notes: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Id. art. 2, para. 4. The first sentence of Article 51 of the U.N. Charter, however, adds: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Id. art. 51. The concept of proper authority is interesting and debatable. Can the United States, acting unilaterally, be a proper authority? Must the United Nations Security Council sanction every action? See JOHNSON, supra note 1, at 58-63 (observing that the United Nations lacks the cohesion, sovereignty, and chain of command necessary to be a competent proper authority under the just war tradition); Weigel, supra note 29 (arguing that prior U.N. authority to use force is not required before a state acts); see also TEMES, supra note 14, at 15-16 (arguing that although the term proper authority may have once accounted "for the idea that a Just War might also be undertaken by, as examples, revolutionary movements, breakaway provinces, clans, tribal groups, or religious sects" the form of war today in some way always involves nations and nations have become the proper authorities). But see Dinstein, supra note 31, at 879 (arguing that the Security Council is the only proper authority absent self-defense).
49. See OREND, supra note 20, at 50.
50. See id.
51. See id.
52. Id.
53. See JOHNSON, supra note 1, at 24 (listing the connections between the just war tradition and positivist international law); see, e.g., Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 51, para. 5b, adopted June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I] (stating that "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" would be considered an indiscriminate attack and violate the principle of proportionality); Hague Convention IV Respecting the Laws and Customs of War on Land art. 22, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations] ("The right of belligerents to adopt means of injuring the enemy is not unlimited."); U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE para. 41 (18 July 1956) [hereinafter FM 27-10] ("[L]oss of life and damage to property must not be out of pro-portion to the military advantage to be gained."). The United States signed Additional Protocol I on December 12, 1977, subject to declarations, but never formally ratified Additional Protocol I. The United States, however, considers many of the provisions of Additional Protocol I, including Art. 51, para. 5b, customary international law. See Michael Matheson, Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. POL'Y 419, 420 (1987).
54. See generally CONFLICT TERMINATION AND MILITARY STRATEGY: COERCION, PERSUASION, AND WAR (Stephen J. Cimbala & Keith A. Dunn eds., 1987) (providing a general introduction to concepts of war termination); WAR AND MORALITY (Patrick Mileham, ed., 2004) (containing an excellent collection of contemporary articles discussing warfare and morality, focusing upon operations in Iraq and Afghanistan, compiled by the United Kingdom's Royal United Services Institute for Defence and Security Studies).
55. See OREND, supra note 20, at 218; Hague Regulations, supra note 53, arts. 32-41.
56. Professor Orend remarks: "Those articles were ratified in 1907, and sound like it. Their quaint references to white flags and buglers, their vague commitments to military honour, their pedantic distinctions between general and local armistices, and the overwhelming emptiness of their nature renders these articles all but irrelevant in the current context." OREND, supra note 20, at 218.
57. Id. at 222. Professor Orend lists the benefits of having codified international laws regarding war termination: 1. At their most narrow, these laws would specify the content of minimally acceptable behaviour during war termination. 2. At their most broad, these laws would serve as shared standards of commitment and aspiration with regard to healing the wounds of war. 3. These laws would establish guidelines, or a kind of procedure, whereby belligerents could communicate to their opponents their intentions for action during postwar negotiations. 4. These laws would thereby help to stabilize and ground expectations of state behaviour during a very uncertain and delicate period, leading to shared modes of interpreting and evaluating peace treaties and mitigating reliance on prolonged fighting to strengthen position at the bargaining table. 5. In many instances, the laws will, if properly framed, express morally worthy aims, such as the protection of human rights, the minimization of postwar deprivation and suffering, the directing of punitive measures away from innocent non-combatants and the gradual transformation of the international system itself into one in which war is resorted to less frequently, with diminished rates of death and destruction. Id. at 222-23.
58. Brian Orend, Justice after War, 16 ETHICS & INT'L AFF. 43, 43 (2002).
59. Perhaps this is because the majority of the intellectual debate among leaders, theologians and politicians usually occurs prior to initiation of hostilities and again during conflict. By the time the war concludes, the world focuses its attention on the next potential conflict arena.
60. See OREND, supra note 20, at 2, 217.
61. See id. at 217.
62. See id. at 223-24. The jus post bellum considerations are particularly linked to the jus ad bellum factors leading a nation to decide to embark upon war. Indeed, the very goal of going to war under jus ad bellum considerations is to obtain a better peace. See JOHNSON, supra note 13, at 3. While Kant believed that analysis of a proper war termination hinged on the victor first satisfying the jus ad bellum and jus in bello criteria, there is considerable value in analyzing jus post bellum considerations regardless of the successful satisfaction of the two prior prongs. This is especially true given the paucity of international guidance on postwar management. Professor Brian Orend follows the Kantian approach, believing that one must premise a jus post bellum analysis upon the assumption that the victor already has satisfied the jus ad bellum and jus in bello prongs. He writes: "In my judgment, it is only when the victorious regime has fought a just and lawful war, as defined by international law and just war theory, that we can speak meaningfully of rights and duties, of both victor and vanquished, at the conclusion of armed conflict." Orend, supra note 58, at 44. However, even Professor Orend conducts his own application of his jus post bellum criteria to the 1991 Persian Gulf War after noting that he is not going to first concern himself about satisfying the prior Jus ad Bellum or Jus in Bello issues. See OREND, supra note 20, at 235. Thus, although he does not openly admit it, he too must see a value in analyzing jus post bellum regardless of satisfaction of the prior two prongs.
63. See Michael J. Schuck, When the Shooting Stops: Missing Elements in Just War Theory, 3 CHRISTIAN CENTURY, Oct. 26, 1994, at 982. Professor Schuck became inspired to comment on jus post bellum after seeing a picture of U.S. General Norman Schwarzkopf, Commander of Central Command (CENTCOM) and of coalition forces during the 1991 Persian Gulf War, leading a postwar victory parade at Disneyworld alongside Mickey Mouse and Donald Duck. See id. Professor Schuck labeled the picture "a scandalous trivialization of war." Id.
64. The author selected these three scholars for analysis based on the following reasons: Professor Michael Schuck was the first to propose distinguishable jus post bellum criteria; Professor Michael Walzer is widely regarded as the leading voice in just war theory; and Professor Brian Orend offers the most comprehensive proposal for jus post bellum criteria.
65. See Schuck, supra note 63, at 982.
66. Id.
67. See id.
68. Id. at 983.
69. See id.
70. Id. at 982.
71. Id. Over two thousand years ago, the Greek philosopher Plato cast his thoughts towards repentance when he "urged Greeks not to construct monuments to honor the victors of war ... fearing that such public observances might fuel hard feelings and thus impede the healing progress." Iasiello, supra note 4, at 41.
72. Schuck, supra note 63, at 982.
73. Id.
74. Kenneth R. Himes, The Case of Iraq and the Just War Tradition, (Dec. 3, 2002), available at http://www/wtu.edu.news/TheologiansCorner/ 12-3-02-Himes-JustWar-Iraq.htm. Professor Schuck elaborates: "[Saint] Augustine thought that anyone, Christian or not, could participate in a just war and escape legal culpability. But to escape divine culpability a soldier must conduct himself in a manner free of cruelty, enmity and lust." Schuck, supra note 63, at 984. Rear Admiral Iasiello places a moral responsibility on belligerents to help heal the warriors' mental and emotional wounds from war, and to assist the warriors and their families back into the normalcy of humanity and society. See Iasiello, supra note 4, at 48-51.
75. Schuck, supra note 63, at 982. The Treaty of Versailles was signed on June 28, 1919, in the aftermath of World War 1 between Germany and the victorious Allied armies of the United States, Great Britain, and France. The Treaty required Germany to surrender its overseas empire and one-seventh of its territory in Europe, including the valuable Alsace-Lorraine region; dismantled Germany's armed forces and forbade Germany to station troops or erect fortifications; denied Germany entry into the newly formed League of Nations; and required Germany to pay a sizable reparations bill. See LARRY H. ADDINGTON, THE PATTERNS OF WAR SINCE THE EIGHTEENTH CENTURY 158-59 (1984). Failure to permit honorable surrender may only hasten a subsequent conflict. The "stigma" of signing such an onerous treaty along with the severe reparations undermined the newly established German Weimar Republic, plunged Germany into depression, and paved the way for the rise of Adolf Hitler, Nazism, and World War II twenty years later. JAMES L. STOKESBURY, A SHORT HISTORY OF WORLD WAR II 37-38 (1980). Rear Admiral Iasiello adds, "The absence of postwar vision [at Versailles] negated, for all practical purposes, any hope of a just and lasting peace." Iasiello supra note 4, at 38.
76. See Schuck, supra note 63, at 982-83. MG Chamberlain ordered his Union troops to salute the defeated Confederate force as it approached the Union line. Upon seeing this, MG Gordon then turned to his men and ordered his Confederates to return the salute as they marched past the Union soldiers. Major General Chamberlain later described the scene as "honor answering honor." Id; see also Iasiello, supra note 4, at 40-41 (describing the poise and honor of the surrender at Appomattox). The formal signing of the articles of capitulation, which paroled the Confederate Army, had occurred at the Appomattox Courthouse three days earlier, on 9 April 1865, between Union Lieutenant General Ulysses S. Grant and Confederate General Robert E. Lee. See JAMES M. MCPHERSON, ORDEAL BY FIRE: THE CIVIL WAR AND RECONSTRUCTION 482 (1982).
77. Schuck, supra note 63, at 983; see also Iasiello, supra note 4, at 44-45 (noting that children and other noncombatants not only suffer directly as a result of losing families, homes, life support means, and a sense of normalcy, but, also, indirectly through the lingering effects of uranium munitions and defoliating agents).
78. See Iasiello, supra note 4, at 44-45. Rear Admiral Iasiello comments that in post-war situations when basic resources and life sustaining objects are scarce, children, the sick, and the elderly suffer and die in "disproportionate numbers" in comparison to the "more influential or powerful segments of society." Id. at 45.
79. Schuck, supra note 63, at 983.
80. See Iasiello, supra note 4, at 45-47 (arguing that belligerent nations share a duty, and the international community should hold these countries accountable, to restore the environment to a condition that existed ante bellum).
81. See Schuck, supra note 63, at 983; see also Himes, supra note 74 (analyzing Professor Schuck's criteria and suggesting a fourth principle of "establishing a civil society" to accompany Professor Schuck's principle of restoration). "The principle of establishing a civil society complements the principle of restoration by extending 'basic infrastructure' to include not just the material infrastructure of roads, electricity, and communication but the human infrastructure for peaceful communal life" such as police and judicial functions. Himes, supra note 74.
82. The majority of the analysis of Professor Walzer's beliefs evolves from the text of a speech Professor Walzer presented to the Heinrich Böll Foundation in Berlin, Germany, on July 2, 2002. See Michael Walzer, Address Given at the Heinrich Böll Foundation, Berlin, Germany: Judging War (July 2, 2002), available at http://www.boell.de/downloads/aussen/ walzer_judging_war.pdf [hereinafter Walzer Address]. The analysis also relies heavily upon Professor Walzer's book, Arguing About War, published in 2004, which contains several of his recent essays on Iraq and Afghanistan. See generally WALZER, supra note 12. Professor Walzer is a vocal opponent of the U.S. decision to go to war with Iraq in 2003, and is critical of the U.S. postwar plans for Iraq. See id. at 165. Professor Walzer exhorts warring nations to engage in jus post bellum considerations at the beginning of hostilities and notes, "occupying powers are morally bound to think seriously about what they are going do in someone else's country." Id.
83. Walzer Address, supra note 82.
84. WALZER, supra note 18, at 121 (quoting B.H. LIDDELL HART, STRATEGY 338 (1974)) (emphasis added).
85. Id. at 121-22.
86. See Walzer Address, supra note 82.
87. See id.
88. See id.
89. Id.
90. Id.
91. See id. Professor Walzer believes that the government of a vanquished nation can forfeit its right to rule when that government has embarked on repeated acts of aggression or is a murderous regime. See id. Professor Orend believes that Professor Walzer does not advocate an "expansive view on forcible rehabilitation ... because of the great value he attaches to political sovereignty, to shared ways of life, and to free collective choice - even if these end up failing to express the degree of domestic human rights fulfillment that we in Western liberal democracies might prefer." Orend, supra note 58, at 51.
92. WALZER, supra note 12, at 164.
93. Walzer Address, supra note 82.
94. As shown by the Treaty of Versailles, however, subjecting a defeated Germany to overly oppressive and unrealistic military limitations had the opposite effect. See supra note 75 and accompanying text (discussing the terms of the Treaty of Versailles).
95. WALZER, supra note 41, at 288.
96. See Walzer Address, supra note 82.
97. See id.
98. See OREND, supra note 20, at 217-63.
99. Id. at 226.
100. The six traditional jus ad bellum criteria are just cause, right intention, proper authority and public declaration, last resort, probability of success, and macro proportionality (proportionality of good versus evil). See supra note 46 and accompanying text (providing a definition of the jus ad bellum criteria). The two traditional jus in bello criteria are micro proportionality and discrimination. See supra note 52 and accompanying text (defining the jus in bello criteria).
101. See OREND, supra note 20, at 232-33.
102. See id. at 233.
103. See Orend, supra note 58, at 56. Professor Orend posits: 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 are satisfied in addition to just cause. Id.
104. See supra Parts IV.A.3 and IV.B.1-2 (discussing Professor Schuck's notion of restoration and Professor Walzer's theories on local legitimacy and closure).
105. See Orend, supra note 58, at 46.
106. Id.
107. OREND, supra note 20, at 232.
108. Orend, supra note 58, at 47.
109. See id. at 50. Professor Orend points to World War II and Nazi Germany as an aggressor nation and regime warranting complete political rehabilitation. See id. He also states that the rehabilitation efforts of the Allies after World War II in both Japan and West Germany are illustrative of the scope and commitment required by the victorious side. See id. at 50-51; see also infra notes 143-144 and accompanying text (discussing several examples of rehabilitation).
110. See Orend, supra note 58, at 50.
111. Id. at 51. In some instances, Professor Orend believes that minor rehabilitation may suffice such as instituting basic human rights programs, reforming the military, police and judiciary, and verifying election proceedings. See id. Professor Walzer is more concerned with violating national sovereignty and focuses more on the local legitimacy of the government in the aggressor nation rather than the degree of depravity, reserving political restructuring for only the most heinous regimes. See supra Part IV.B.I (discussing Professor Walzer's concepts of national sovereignty and local legitimacy).
112. Orend, supra note 58, at 47.
113. See id. at 48.
114. Id.
115. See supra note 75 (discussing the terms of the Treaty of Versailles).
116. See Orend, supra note 5 8, at 47.
117. See OREND, supra note 20, at 232.
118. Id.
119. The jus ad bellum criterion of right intention states that a nation must fight a war only for a just cause. See supra note 46 and accompanying text (defining the jus ad bellum criterion of right intention).
120. See Orend, supra note 58, at 53; see also supra Part IV.B.2 (discussing Professor Walzer's thoughts on war tribunals).
121. OREND, supra note 20, at 232. Professor Orend recommends that "an impartially constructed international tribunal" try all violations of jus in bello, regardless of whether they occur on the side of the aggressor or vindicator. Orend, supra note 58, at 54.
122. OREND, supra note 20, at 232.
123. See Orend, supra note 58, at 55. Professor Orend concedes that occasionally there is a need for secrecy in diplomatic negotiations (such as the Cuban missile crisis); however, this need for secrecy does not exist after a full-scale war. See id. at 54-55.
124. See id. at 54-55. The jus ad bellum criterion of proper authority and public declaration likewise requires that the appropriate authority make the decision to go to war public. See supra note 46 and accompanying text (defining the jus ad bellum criterion of proper authority and public declaration). 125 See supra note 52 and accompanying text (defining the jus in bello criterion of discrimination).
125. OREND, supra note 20, at 232.
126. In his first jus post bellum criterion, Professor Orend states that one factor to use in determining if a just cause for termination exists, is whether the aggressor nation is willing to provide compensation to victims. See id.
127. Orend, supra note 58, at 48.
128. Id. Professor Orend feels that this is feasible since the regime elites in aggressor nations historically tend to be wealthy, often as a direct result of abusing their leadership positions. See id.
129. The just war tradition employs the term proportionality in both jus ad bellum and jus in bello. In jus ad bellum, it is the requirement for a state to weigh the potential good that can occur from using force to stop an evil from occurring or continuing to occur, against the potential for harm and destruction that can occur from the use of force. See supra note 46 and accompanying text (defining the jus ad bellum use of the term proportionality); see also JOHNSON, supra note 1, at 28, 34-35 (providing additional insight into the application of this criterion in jus ad bellum). In jus in bello, proportionality refers to weighing the potential military benefit of an action against the potential for harm done to non-combatants and property. See supra note 52 and accompanying text (defining the jus in bello use of the term proportionality).
130. OREND, supra note 20, at 232-33
131. See Orend, supra note 58, at 46.
132. Id.
133. See id.
134. For the United States, responsibility for conducting peace operations and
135. JOHNSON, supra note 1, at 35.
136. See Gary J. Bass, Jus Post Bellum, 32 PHIL. & PUB. AFF. 384, 386 (2004).
137. See id.
138. Id. Professor Bass, however, limits his arguments to a situation involving genocide and remarks that in general "there should be a presumption against any right of the victors to reconstruct a defeated country." Id. at 396.
139. Professor Moore notes a logical, yet significant, distinction between regime elites in democracies and nondemocracies. A democratic leader will more easily conclude that a failed or imprudent war or aggressive act is, in simplest terms, not worth it because of the prospect that the democratic electorate will vote him out of office. "Democracy internalizes these costs in a variety of ways including displeasure of the electorate at having war imposed upon it by its own government. And deterrence either prevents achievement of the objective altogether or imposes punishing costs making the gamble not worth the risk." MOORE, supra note 2, at 43. In contrast, the leader of a nondemocratic regime does not share that self-preservation concern. "Decision elites in nondemocratic nations, then, may be far more disposed to high risk aggressive actions risking major war and other disasters for their people." Id. at 11. Professor Moore often uses a classroom analogy of a "heads-I-win, tails-I-lose" situation for a democratically elected leader who engages in international conflict. If the war effort succeeds, the democratic leader's popularity soars (as did U.S. President George H.W. Bush's immediately after the 1991 Persian Gulf War). If the war effort suffers, the democratic leader will suffer detrimental effects (as did U.S. President Lyndon Johnson with regard to Vietnam). By contrast, the leader of a nondemocratic nation faces a "heads-I-win, tails-you-lose" scenario and only the citizens in his country who may potentially die or lose their well-being experience the loss. See Steven Geoffrey Gieseler, Debate on the 'Democratic Peace,' AM. DIPL. (Mar. 3, 2004), available at http://www.unc.edu/depts/diplomat/archives_roll/ 2004_01-03/gieseler_de-bate/gieseler_debate.html.
140. Although there is no definitive list of what is encompassed in the term "fundamental human rights," the most informative is the Restatement (Third) of Foreign Relations Law of the United States (2003). See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (2003). The Restatement provides the U.S. position that certain fundamental rights have risen to the level of customary international law. See id. A state violates international law if, as a matter of policy, it "practices, encourages, or condones" any of the following: genocide; slavery; murder or causing the disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; violence to life or limb; hostage taking; punishment without fair trial; prolonged arbitrary detention; failure to care for and collect the wounded and sick; systematic racial discrimination; and consistent patterns of gross violations of internationally recognized human rights. Id.
141. See MOORE, supra note 2, at 1-25. In support of the democratic peace theory, which posits that major war occurs rarely if at all between liberal democracies, Professor Moore cites to a study by Professors Rudy Rummel and Bruce Russett showing that between 1816 and 1991 there were 353 pairings of nations fighting in international wars, yet none of these wars was between democracies. See id. at 2. One may view Kant's writings as the beginnings of the democratic peace paradigm. Kant, who introduced jus post bellum into the just war tradition, envisioned a republic where free people would naturally desire avoidance of war and as voting members could control the actions of the state. See Gieseler, supra note 140. A separate study of democracies and dictatorships that were in existence from 1955 through 2002 "found that economic, ethnic, and regional effects have only a modest impact on a country's risk of political instability. Rather, stability is overwhelmingly determined by a country's patterns of political competition and political authority." Jack A. Goldstone & Jay Ulfelder, How to Construct Stable Democracies, 28 WASH. Q. 9, 9 (2004). The study concluded that "the key to maintaining stability appears to lie in the development of democratic institutions that promote fair and open competition, avoid political polarization and factionalism, and impose substantial constraints on executive authority." Id. at 10.
142. One can point to several successful recent examples of political restructuring following conflict: Panama after the U.S. invasion, in 1989 (codenamed Operation Just Cause utilizing the jus ad bellum criterion), Bosnia-Herzegovina after the 1996 Dayton peace accords and Kosovo in 1999. See Daniel L. Byman & Kenneth M. Pollack, Democracy in Iraq?, 26 WASH. Q. 119, 126 (2003). The study of nations between 1955 through 2002, referenced by Goldstone and Ulfelder, suggested that all nations, regardless of wealth and internal tensions, have the potential for democratic institutions and stability. See Goldstone & Ulfelder, supra at 10. But see Janusz Bugajski, Balkan in Dependence?, 23 WASH. Q. 177, 177 (2000) (arguing that both Bosnia and Kosovo have become too reliant upon international institutions and risk a permanent dependence on the international community that will impede national self-determination).
143. Orend, supra note 58, at 51. A recent example of a situation permitting major restructuring was Afghanistan after the fall of the Taliban regime in November 2001. The Taliban regime, a collection of former mujahedin and fundamental Islamic militia, took advantage of a power vacuum within Afghanistan that existed after the withdrawal of Soviet troops in 1989 and began seizing control over the country in 1994. See Zalmay Khalilzad & Daniel Byman, Afghanistan: The Consolidation of a Rogue State, 23 WASH. Q. 65, 66-67 (2000). The Taliban, Arabic for "religious students," imposed their version of strict Islamic rule upon Afghanistan by banning outside influences to include television, cameras and music. See Christopher L. Gadoury, Comment, Should the United States Officially Recognize the Taliban? The International and Political Considerations, 23 HOUS. J. INT'L L. 385,386, 392 (2001). The Taliban condoned public tortures and executions, required men to wear beards, and stripped woman of nearly all rights, to include education. See id. at 392-93. In the months leading up to the September 11, 2001, attacks on the United States, only three nations, Pakistan, Saudi Arabia, and the United Arab Emirates officially recognized the Taliban as the government of Afghanistan. See id. at 386. The rest of the world refused to recognize the Taliban, citing to human rights abuses, involvement in drug production and trading, and harboring of terrorists. See id. at 386-87. On December 7, 2004, following the ouster of the Taliban and a three-year occupation by a coalition of international nations led by the United States, Hamid Karzai was inaugurated as President of Afghanistan, the nation's first democratically elected leader. See Eric Schmitt & Carlotta Gall, Karzai is Sworn In, Citing a "New Chapter" for Afghanistan, N.Y. TIMES, Dec. 8, 2004, at A8. After World War II, complete political restructuring also occurred in Allied controlled Germany and in Japan. In Germany, an April 1945 Directive issued by the U.S. Department of State to the Supreme Allied Commander, General Dwight D. Eisenhower, outlined the basic objectives of the post-war military occupation in Germany. The principal Allied objective is to prevent Germany from ever again becoming a threat to the peace of the world. Essential steps in the accomplishment of this objective are the elimination of Nazism and militarism in all their forms, the immediate apprehension of war criminals for punishment, the industrial disarmament and demilitarization of Germany, with continuing control over Germany's capacity to make war, and the preparation for an eventual reconstruction of German political life on a democratic basis. Directive to Commander-in-Chief of United States Forces of Occupation Regarding the Military Government of Germany, April 1945, http://usa.usembassy.de/etexts/ga3-450426. pdf. In Japan, U.S. General Douglas MacArthur, the Supreme Commander for the Allied Powers in Japan, directed a six-year military occupation that oversaw a revision of the country's laws, a new constitution focusing upon human rights and social justice and the creation of a new Japanese legislature, the Diet. See David B. Rivkin Jr. & Darin R. Bartram, Military Occupation: Legally Ensuring a Lasting Peace, 26 WASH. Q. 87, 94-95 (2003).
144. Concerning Operation Iraqi Freedom, critics outside of the just war tradition usually focused on other objections to political restructuring and planned democratization. Among the claims asserted were: Iraq was not ready for democracy; the Iraqi society was too fragmented; the ideological makeup of the country would taint the results; and the internal community would not provide the long-term commitment of support to Iraq. See Byman & Pollack, supra note 143, at 119-34 (refuting these objections and providing historical counter-points).
145. See supra note 91 and accompanying text (discussing Professor Walzer's reluctance to intrude on national sovereignty). The struggle between enforcing principles such as fundamental human rights and self-determination while restraining from interfering in the internal affairs of a sovereign state is complex and even exists in the Charter of the United Nations. Article 1 of the Charter lists "self-determination," "human rights," and "fundamental freedoms" as purposes and goals of the United Nations. U.N. Charter art. 2, paras. 2-3. Article 2, paragraph 7, of the Charter, however, prohibits nations from "interven[ing] in matters which are essentially within the domestic jurisdiction of any state." U.N. Charter art. 2, para. 7; see also Pascal Boniface, What Justifies Regime Change?, 26 WASH. Q. 61, 63 (2003) (discussing the historical basis in the Charter of the United Nations for this balance between self-determination and sovereignty).
146. If there is an occupation, the occupying force is obligated to take certain measures within the occupied territory. "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Hague Regulations, supra note 53, art. 42; FM 27-10, supra note 53, para. 351. A military occupation "does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty." FM 27-10, supra note 53, para. 358. The occupying force has several obligations to administer as the government in the occupied country as noted in the 1907 Hague Regulations and the 1949 Geneva Convention Relative to the Protection of Civilian Personnel in Time of War. See Hague Regulations, supra note 53, arts. 42-56; Geneva Convention Relative to the Protection of Civilians in Time of War, Aug. 12, 1949, arts. 47-48, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention (IV)]. "The authority of the legitimate power having in feet passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." Hague Regulations, supra note 53, art. 43. Subsequent Articles 44-56 in the Hague Regulation impose additional requirements upon the occupying force. See id. arts. 44-56. Additionally, Section III of Geneva Convention (IV) adds provisions requiring the occupying state to take measures including: devoting special care for children, see Geneva Convention (IV), supra, art. 50; providing food and medical supplies to the local population, see id. art. 55; maintaining proper medical and hospital services, see id. art. 56; and ensuring the proper administration of justice, see id. arts. 64-78. The law of occupation provided in the Hague Regulations and Geneva Conventions is severely dated and its applicability and validity in the modern landscape is questionable. See generally Davis P. Goodman, The Need for Fundamental Change in the Law of Belligerent Occupation, 37 STAN. L. REV. 1573 (1985) (stating that occupation law must become more contemporary and should borrow concepts from modern human rights law); David Scheffer, Future Implication of the Iraq Conflict: Beyond Occupation Law, 97 AM. J. INT'L L. 842 (2003) (noting that the scope of modern day occupations exceed what existing occupation law envisioned); Robert D. Tadlock, Occupation Law and Foreign Investment in Iraq: How an Outdated Doctrine Has: Become an Obstacle to Occupied Populations, 39 U.S.F. L. REV. 227 (2004) (arguing that existing occupation law prevents the occupier from changing foreign investment law to the benefit of the occupied nation).
147. Not only will the magnitude of restructuring necessitate the involvement of many agencies and actors, allowing others to participate in the restructuring can reduce "the fear of imperial hegemony" that some critics currently possess regarding the "altruistic motives" of the United States in Iraq. Boniface, supra note 146, at 71; see also William J. Durch, Picking Up the Peaces: The UN's Evolving Postconflict Roles, 26 WASH. Q. 195 (2003) (extolling the benefits of involving the United Nations in post-conflict situations).
148. In particular, the desires of NGOs and the military are often at odds in post-conflict areas. The NGOs often request that the military provide general security such that there is freedom to circulate amongst the population to reach out and accomplish their humanitarian missions. The NGOs wish to balance this assistance, however, with a need for the local populace to view them as politically neutral and impartial. They do not desire to associate with a certain military or political agenda. Militaries, by contrast, want to be able to control and monitor movement throughout their area of operations and may be reluctant to provide classified security and route information to those outside of direct military channels. The military may often look to utilize NGOs as a force multiplier in accomplishing its post-conflict stabilization objectives. The ability of the NGOs and the military to cooperate without compromising cither's objectives is often a difficult hurdle to clear. See WAR AND MORALITY, supra note 54, at 151-53 (discussing the relationship between NGOs and the military). For additional reading on the interactions between NGOs and the military in post-conflict situations, from the perspective of NGOs, see Jean-Michel Piedagnel, Humanitarian Space, in WAR AND MORALITY, supra note 54, at 143-45 (discussing the interaction of Médecins Sans Frontières (Doctors Without Borders) with the military in humanitarian operations); Roger Yates, Relief - A Human Right, in WAR AND MORALITY, supra note 54, at 139-41 (contrasting the NGOs role in stabilization operations with that of the military); Tim Yates, Stabilization - For Real People, in WAR AND MORALITY, supra note 54, at 147-50 (discussing the complexity of stabilization operations).
149. Iasiello, supra note 4, at 42-43.
150. Id. at 43-44.
151. Id. at 44.
152. Id. The difficult part may be for the victor and international community to provide a proper level of security and supervision during the "protectorship" and "partnership" stages without impeding the advancement of the national security apparatus and local government framework, thereby creating a situation of long-term dependency that will preclude "ownership." See Bugajski, supra note 143, at 192 (arguing that "institutional dependence on foreign actors" is undermining long-term stability and self-determination in the Balkans).
153. Professor Walzer's requirement for local legitimacy in reconstruction is critical for stability. See supra Part IV.B.1 (discussing Professor Walzer's requirement for local legitimacy). Professor Bass notes that creating a post-war government in a vanquished nation that the defeated populace both recognize and accept is not only "an obligation of justice," but also an act of "political prudence." Bass, supra note 137, at 392. Professor Bass points to the post World War I government in Germany, and quotes Winston Churchill: "The Weimar Republic, with all its liberal trappings and blessings, was regarded as an imposition of the enemy. It could not hold the loyalties or the imagination of the German people." Id. at 393 (quoting WINSTON S. CHURCHILL, THE SECOND WORLD WAR: THE GATHERING STORM 11 (1948)).
154. This process will often require support for many years from the international community. In countries such as Iraq, where Saddam Hussein's Ba'th regime facilitated the rule by the privileged Sunni minority over the Shi'a majority, even greater obstacles to embracing democratic principles abound. See Byman & Pollack, supra note 143, at 127, 129-32 (declaring that political stability in Iraq rests with the international community supporting a new Iraqi government, encouraging ideologically opposed representatives to work towards compromise, protecting Iraq from meddling neighbors, minimizing internal civil strife and ensuring domestic security). Economic revitalization is often a necessary connected corollary to political restructuring. See Bathsheba Crocker, Reconstructing Iraq's Economy, 27 WASH. Q. 73 (2004) (discussing the challenges of rebuilding Iraq's economy in the aftermath of Operation Iraqi Freedom).
155. WALZER, supra note 18, at 288.
156. Id. at 121 (quoting B.H. LIDDELL HART, STRATEGY 338 (1974)).
157. Professor Johnson adds that the establishment of war crime proceedings helps to institute the "rule of law" and to aid the "reconstruction of a civil society torn by conflict." JOHNSON, supra note 1, at 206.
158. Davida E. Kellogg, Jus Post Bellum: The Importance of War Crimes Trials, PARAMETERS, Autumn 2002, at 88.
159. Bass, supra note 137, at 406. Moreover, meritorious prosecutions ensure that these leaders to do not return to power.
160. The process also aids civilians in the aggressor nation, who were the targets of national propaganda and misinformation, to understand the evils committed by the aggressor's regime elites that prompted a resort to just war. See Major Jeffrey L. Spears, Sitting in the Dock of the Day: Applying Lessons Learned from the Prosecution of War Criminals and Other Bad Actors in Post-Conflict Iraq and Beyond, 176 MIL. L. REV. 96, 154 (2001) (noting that tribunals can provide a powerful and positive introduction to civilians in formerly aggressive regimes on the role of justice and the rule of law). Whether recent war crimes tribunals have been effective in generating public confidence in the legitimate process of justice is debatable. Unfortunately, negative views by the ruling government in a nation that is undergoing tribunals can undermine public confidence in the process. This has occurred in both Rwanda and Serbia as those national governments have taken actions to criticize and undermine the legitimacy of the international tribunal process. See INTERNATIONAL WAR CRIMES TRIALS: MAKING A DIFFERENCE? 83-100 (Steven R. Ratner & James L. Bischoff eds., 2004) [hereinafter MAKING A DIFFERENCE?]; Ambassador Manzi Bakuramutsa, Identifying and Prosecuting War Criminals: Two Case Studies - the Former Yugoslavia and Rwanda, 12 N.Y. L. SCH. J. HUM. RTS. 631, 643 (1995) (noting that in November 1994, when the U.N. Security Council adopted Resolution 955 establishing the Rwanda Tribunal, Rwanda, which was coincidentally an at-large member of the Security Council at the time, was the only one of the fifteen nations on the Security Council to vote against the resolution). As a result of negative actions by their own governments, citizens may not view the process as a means towards reconciliation, but rather "as an unavoidable and enforced precondition for . . . full return to the world community." MAKING A DIFFERENCE?, supra, at 93.
161. See generally MAKING A DIFFERENCE?, supra note 161, at 76-106 (discussing international tribunals and their impact on national reconciliation).
162. The definition of a war crime is complex and hinges upon the multiple definitions for both war and crime. The term "war crime" is often generally defined as "a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime." FM 27-10, supra note 53, para. 499. War crimes are further broken down into grave breaches and simple breaches. Grave breaches differ from simple breaches in that grave breaches are those violations of the law of war that occur during international armed conflict and are committed against a protected person under one of the Geneva Conventions. The four Geneva Conventions list the categories of grave breaches which include offenses such as willful killing, torture, hostage taking and compelling a prisoner of war to serve in the armed forces of his enemy. The contracting parties to the Geneva Conventions are required to try individuals suspected of committing grave breaches. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, arts. 49-50, 6 U.S.T. 3114, 75 U.N.T.S. 85; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, arts. 50-51, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 129-30, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention (IV), supra note 147, arts. 146-47.
163. See generally GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE, THE POLITICS OF WAR CRIMES TRIBUNALS (2000) (discussing the establishment and politics of five separate war crimes tribunals including: St. Helena in 1815 for the Bonapartists; tribunals in Leipzig and in Constantinople following World War I; Nuremberg following World War II; and the International Criminal Tribunal for the Former Yugoslavia); TIMOTHY P. MAGA, JUDGMENT AT TOKYO: THE JAPANESE WAR CRIMES TRIALS (2001) (focusing on the tribunals for Japanese soldiers and officers, to include General Tomoyuki Yamashita, after World War II); MAKING A DIFFERENCE?, supra note 161 (focusing upon the tribunals for the Former Yugoslavia and Rwanda).
164. See generally David L. Herman, A Dish Best Served Not at All: How Foreign Military War Crimes Suspects Lack Protection Under the United States and International Law, 172 MIL. L. REV. 40 (2002) (examining the sources of law for defining and prosecuting war crimes and providing a critique of the ICC); Lieutenant Colonel (LTC) Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (2001) (providing a critique of the principle of complementarity in the ICC that allows the ICC to impinge upon state sovereignty and complement any domestic trials for war crimes with an international tribunal); Major Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence, 167 MIL. L. REV. 156 (2001) (noting concerns about the ICC and arguing that a move towards the ICC is a threat to U.S. national interests and may weaken the potential ability to use more effective military power).
165. Major Spears advocates tailoring a system to try war criminals that is unique to each conflict: "[A] post-conflict system of justice must be tailored to meet the needs of the unique populations and consistencies that present themselves. Failure to do so will miss an opportunity to reconcile competing interests, while possibly setting the stage for future international armed conflict or civil war." See Spears, supra note 161, at 153.
166. One criticism of the rules for the International Criminal Tribunal for the Former Yugoslavia is that disclosure of the terms of a plea agreement is conducted in a closed judicial session outside of the view of the public and any victims. See MAKING A DIFFERENCE?, supra note 161, at 25-26.
167. See Major Alex G. Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict, 171 MIL. L. REV. 1, 70-76 (2002) (advocating for domestic enforcement measures in lieu of international criminal tribunals out of a concern that international tribunals politicize prosecutions, "de-legitimize already chaotic states," and lessen the domestic credibility of the final judgment); Rivkin & Bartram, supra note 144, at 98 (arguing that allowing Iraqi courts to prosecute former Iraqi regime elites for jus ad bellum and jus in bello violations would strengthen the legitimacy of the decisions in the Arab world); see generally Spears, supra note 161, at 154-55 (arguing that national commissions, courts-martial or domestic courts are appropriate and speedier forums for lower-level cases or cases that more appropriately, because of subject matter, fall under the jurisdiction of those forums).
168. In Iraq, for example, the law enforcement and judicial institutions are often viewed by Iraqis merely as repressive instruments of the former Saddam Hussein regime. See Frederick D. Barton & Bathsheba Crocker, Winning the Peace in Iraq, 26 WASH. Q. 7, 9, 16-17 (2003).
169. See Michele Flournoy & Michael Pan, Dealing with Demons: Justice and Reconciliation, 25 WASH. Q. 111, 112 (2002).
170. See supra notes 96, 120 and accompanying text (discussing Professor Walzer and Professor Orend's views on war crimes tribunals).
171. See id. Professor Bass also views the decision on war crimes tribunals as a proportionality analysis. "The duty of peace must outweigh the duty of justice . . . legal justice is one political good among many - like peace, stability, democracy, and distributive justice." Bass, supra note 137, at 384, 405. Professor Bass further notes that this compromise occurred in U.S. foreign policy as recently as Operation Iraqi Freedom. "Before the Iraq war, Donald Rumsfeld, the U.S. secretary of defense, floated the idea of exiling Saddam and other top Ba'thists with de facto impunity from war crimes prosecutions as a 'fair trade to avoid a war.'" Id. at 405; see also Steve R. Weisman, Exile for Hussein May Be an Option, U.S. Officials Hint, N.Y. TIMES, Jan. 20, 2003, at A1. Professor Johnson argues that war crime proceedings should only occur in cases where there is "a pattern of atrocious conduct" since ongoing proceedings may prolong the road to peace. JOHNSON, supra note 1, at 204. Professor Johnson notes that "[w]ithin the framework of just war reasoning, the test of last resort needs to be passed before resort to force is finally warranted in moral terms, and it may also be well to think of the institution of war crimes proceedings in this way." Id.
172. Iasiello, supra note 4, at 48.
173. Bass, supra note 137, at 408.
174. Id. at 408-09. The 1907 Hague Regulations permit an occupying force to "take possession of cash, funds, and realizable securities which are strictly the property of the [occupied] State, depots of arms, means of transport, stores and supplies, and generally, all movable property belonging to the State which may be used for military operations." Hague Regulations, supra note 53, art. 53.
175. See supra notes 113-114, 116 and accompanying text (discussing Professor Orend's views on extracting restitution from aggressor nations); see also FM 27-10, supra note 53, art. 364 ("The economy of an occupied country can only be required to bear the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear.").
176. Chapter VII of the Charter of the United Nations, entitled, "Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression," encompasses Articles 39 through 51 of the Charter and grants the Security Council the power to "determine the existence of any threat to the peace, breach of the peace, or act of aggression and... make recommendations, or decide what measures shall be taken... to maintain or restore international peace and security." U.N. Charter art. 39. The Security Council may authorize measures short of force, to include "complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations." U.N. Charter art. 41. The Security Council may also authorize member States to employ military force should the lesser means provided for in Article 41 be inadequate. See U.N. Charter art. 42.
177. See S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg., U.N. Doc. S/RES/687 (1991).
178. The relevant paragraphs of Resolution 687 state: 16. Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait; 17. Decides that all Iraqi statements made since 2 August 1990 repudiating its foreign debt are null and void, and demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt; 18. Decides also to create a fund to pay compensation for claims that fall within paragraph 16 above and to establish a Commission that will administer the fund; 19. Directs the Secretary-General to develop and present to the Security Council for decision, no later than thirty days following the adoption of the present resolution, recommendations for the fund to meet the requirement for the payment of claims established in accordance with paragraph 18 above and for a programme to implement the decisions in paragraphs 16, 17 and 18 above, including: administration of the fund; mechanisms for determining the appropriate level of Iraq's contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products from Iraq not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq's payment capacity as assessed in conjunction with the international financial institutions taking into consideration external debt service, and the needs of the Iraqi economy; arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq's liability as specified in paragraph 16 above; and the composition of the Commission designated above. S.C. Res. 687, supra note 178. Security Council Resolution 687 is a lengthy and comprehensive resolution. "It is known amongst diplomats and lawyers as the 'mother of all resolutions,' the longest resolution at the time." Christopher Greenwood, Legal Justification for the Resort to Force, in WAR AND MORALITY, supra note 54, at 44. In August 1991, the Security Council passed Security Council Resolution 705, which allocated a cap of thirty percent of the annual value of Iraq's exports of petroleum and petroleum products to the reparations fund. See S.C. Res. 705, U.N. SCOR, 46th Sess., 3004th mtg., U.N. Doc. S/RES/705 (1991).
179. See David D. Caron, The Reconstruction of Iraq: Dealing with Debt, 11 U.C. DAVIS J. INT'L L. & POL'Y 123, 134-35 (2004). The status of the United Nations Compensation Commission (UNCC) claims processing as of May 7, 2004, was: No. of claims left to be resolved 44,270 Compensation sought by claims left to be resolved (US$ approx.) 82,620,139000 No. of claims resolved 2,604,482 Compensation sought by claims resolved (US$) 265.992.097,839 No. of resolved claims awarded compensation 1,507,374 Compensation awarded (US$) 48,170,438,256 See id. at 135. As shown above, of the 2,604,482 claims resolved, the UNCC provided compensation on only 1,507,374 claims. This is a result of the UNCC both denying unsubstantiated claims as well as excluding claims that did not meet the definitional and jurisdictional requirements of paragraph 16 of Resolution 687. See id.
180. See Major Kevin Huyser et al., Contract and Fiscal Law Developments of 2003 - The Year in Review, ARMY LAW., Jan. 2004, at 195, 204; Lieutenant Colonel Mark Martins, No Small Change of Soldiering: The Commander 's Emergency Response Program (CERP) in Iraq and Afghanistan, ARMY LAW., Feb. 2004, at 1. The initial funding for the CERP came from more than $750 million (U.S.) hidden in caches by Ba'athist leaders and seized by U.S. soldiers in the days after the fall of Baghdad. See Martins, supra, at 3. Through coordination with the U.S. Treasury Department, the U.S. Department of Defense, the U.S. Office of Management and Budget, and the Coalition Provisional Authority, military commanders use these funds for vital reconstruction assistance projects in Iraq and Afghanistan. These funds not only assist in rebuilding those countries, but also, provide a means to employ numerous local national personnel and companies and infuse capital into their economies. See id. at 3-9.
181. See Rivkin & Bartram, supra note 144, at 99 (arguing that the occupying powers may use Iraqi oil assets to recoup all costs for reconstruction following Operation Iraqi Freedom). The Hague Regulations support the ability of the occupying power to utilize the natural resources of the occupied nation: "The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct." Hague Regulations, supra note 53, art. 55.