Balancing peace, justice and sovereignty in jus post bellum: The case of 'just occupation'

Millennium: Journal of International Studies

Volumn 36, Issue 3, 2008, Pages 533-554

  Evans, Mark ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

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EID: 50249138334     PISSN: 03058298     EISSN: None     Source Type: Journal    
DOI: 10.1177/03058298080360030801     Document Type: Article

References (52)

1. Brian Orend is arguably jus post helium's most prominent standard-bearer, certainly in terms of the numbers of publications devoted to it. His arguments are brought together in his The Morality of War (Peterborough, ON: Broadview Press, 2006), e.g. at 19-20 and chs 6 and 7. For his most recent statement of the theory
2. see Jus Post Bellum: The Perspective of a Just War Theorist', Leiden Journal of International Law 20, no. 3 (2007): 571-91.
3. Michael Walzer has recently embraced the concept: see Arguing about War (New Haven and London: Yale University Press, 2004), e.g. at 162-8.
4. Other supporters of jus post bellum include Gary Bass, 'Jus Post Bellum', Philosophy and Public Affairs 32, no. 4 (2004): 384-410;
5. Richard P. DiMeglio, 'The Evolution of the Just War Tradition: Defining Jus Post Bellum', Military Law Review 186 (2005): 116-63;
6. Robert E. Williams and Dan Caldwell, 'Jus Post Bellum: Just War Theory and the Principle of Just Peace', International Studies Perspectives 7, no. 4 (2006): 309-20;
7. Patrick Hayden, 'Security beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory' in Just War Theory: A Reappraisal, ed. Mark Evans (Edinburgh: Edinburgh University Press, 2005), 157-76;
8. and my own 'Moral Theory and the Idea of a Just War' in Evans (ed.), Just War Theory, 1-21, at 13, 19-20.
9. Carsten Stahn, in '"Jus ad Bellum", "Jus in Bello" ... "Jus post Bellum"? - Rethinking the Conception of the Law of Armed Force', European Journal of International Law 17, no. 5 (2006): 921-43
10. theorises jus post bellum from the perspective of international law. The present article focuses on moral theory rather than international law on the grounds that it is the former which ultimately animates the latter, but that does not mean that one cannot propose content for JPB on the basis of what is already in law, for example 1907 Hague Convention IV Section III, reproduced in Adam Roberts and Richard Guelff (eds), Documents on the Laws of War, 3rd edn (Oxford: Oxford University Press, 2000), 80-2.
11. An example of the debate which we may need about the just ending of war revolves around Jeff McMahan's critique of unconditional surrender: 'Just Cause for War', Ethics and International Affairs 19, no. 3 (2005): 1-21, at 2-3.
12. Danilo Zolo, Cosmopolis: Prospects for World Government (Cambridge: Polity Press, 1997), 82.
13. This is forcefully argued by Orend as a working-through of Kant's own original insistence on 'right intention': Orend, Morality of War, 19-20, 160.
14. See also Annalisa Koeman, 'A Realistic and Effective Constraint on the Resort to Force? Pre-commitment to Jus in Bello and Jus Post Bellum as Part of the Criterion of Right Intention', Journal of Military Ethics 6, no. 3 (2007): 198-220.
15. Michael Walzer, Just and Unjust Wars, 4th edn (New York: Basic Books, 2006), 21.
16. See McMahan, 'Just Cause for War', 5-7 for a critique of Walzer's thesis.
17. Two separate possibilities should be distinguished here. The first is that what morality specifies for combatants at war's end might sometimes be the same regardless of whether the war was just or not. In this instance, there is a sense in which JPB is essentially indifferent to the JAB/JIB justifications. The second is that on other occasions the JAB/JIB considerations do have a significant bearing on what JPB specifies for a war's aftermath.
18. Admittedly, a pacifist might be disinclined to call this theory jus post bellum insofar as the term buys into the just war tradition, and I am certainly not claiming that all pacifists must accept that JPB models their moral stance. My general point is simply that JPB debates are not concerns only for just-war theorists.
19. I am not claiming they are necessarily on identical ground; presumably, for example, the just-war theorist could countenance retention of a capacity for force on one or more sides in a 'just peace' that would be anathema to at least some pacifists.
20. For further explanation of the 'tickbox' point, see Evans, 'Moral Theory and the Idea of a Just War', 11.1 have some cause to reflect on it, briefly, in this article's concluding section.
21. By dint of this methodology, I would contend that JWT can avoid the charge of naïve other-worldliness: it is the (very venerable) product of 'real-world' reactions to war. And of course those reactions have evolved over time, prompting changes in the theory - and there may always be more to come.
22. Thus indicating a scenario in which in bello and post-bellum considerations overlap.
23. And the concern is compounded if we do indeed wish JPB to broach the issues of an unjust side's rights and responsibilities in various types of situation.
24. Orend, The Morality of War, 180-1.
25. Orend, The Morality of War, 197.
26. The fact that it does not address scenarios (iv)-(vi) is another sense in which it might be thought to be restricted and I do indeed think this is another limitation of it. This issue is, however, not my main concern here.
27. For example: Hayden, 'Security beyond the State', 169, also offers his own versions of Orend's criteria (1)-(7). Bass, 'Jus Post Bellum', 412, says that 'broad political reconstruction is mandated only for genocidal states' and largely confines economic issues to reparations, while DiMeglio, in "The Evolution of the Just War Tradition', 162, proposes only three criteria: (1) seek a lasting peace (including political restructuring); (2) hold morally culpable individuals accountable; (3) exact reparations.
28. Patrick Cockburn, The Occupation: War and Resistance in Iraq (London: Verso, 2007) is a fine example of the many publications now available which document the details of this sorry tale.
29. This statement is a revision of the theory first offered in Evans, 'Moral Theory and the Idea of a Just War', 13. The idea of being 'prepared to' do what is required is designed to convey the injunction that one should do what one reasonably can in pursuit of the stated objectives.
30. A word of explication, relegated to the footnotes so as not to interrupt the main course of the argument: forgiveness is here conceptualised from an Arendtian
31. perspective, well summarised by Andrew Schaap thus: 'forgiveness undoes the meaning of a wrong by bringing to an end the story that continues to implicate the other in an original transgression. In doing so, it leaves the meaning of the event in the past. Trust is ventured in this moment, since it involves a suspension of judgment ... not ... of the wrongness of the act, but the judgment that this confirms the other as one's enemy in the present. Trust is ventured for the sake of establishing a new relation based on mutual recognition of each as co-builders of a common world': 'Political Grounds for Forgiveness', Contemporary Political Theory 2, no. 1 (2003): 77-87, at 82.
32. contend (though will have to argue elsewhere for this) that this is a necessary precondition for the processes of reconciliation, understood as the means by which the former enemies do indeed contribute to the construction of a just and stably peaceful common world. 20. Orend, The Morality of War, 207.
33. In commentary on this article, David Miller has objected that this 'imposition' point is somewhat misdirected in that the democratisation of West Germany can be plausibly understood as a restoration of the Weimar-era liberal-democratic order destroyed by the Nazis after January 1933.1 could, of course, readily substitute Japan in this specific part of the argument, but given that the German citizens were not asked whether they wanted a return of what they once had, and we may reasonably presume would have been ignored had they said no if they had been balloted, I do not believe the point here is weakened.
34. For Morgenthau's own reasoning behind his Plan, see The Morgenthau Diaries: Years of War 1941-1945, ed. John Morton Blum (Boston: Houghton Mifflin, 1967), 394f.
35. This is not a merely hypothetical scenario. The problems which arise from occupiers' administration of occupied territories (and similar situations, in which non-indigenous authorities find themselves running a territory), in terms of how they increasingly substitute, and undermine future prospects, for local self-government are receiving increasing attention in the literature on post-conflict reconstruction. For example, Gerald Knaus and Felix Martin, 'Travails of the European Raj', Journal of Democracy 14, no. 3 (2003): 60-74
36. discuss how the Office of the High Representative in Bosnia accrued autocratic power to deal with the various crises of the ostensibly 'interim' pre-self-government stage and thus frustrated the development of indigenous political capacity. The Kosovo intervention provides a good case-study of how non-indigenous post-conflict administration can become so complex in the attempted discharge of the various post-bellum responsibilities that considerable political effort is drawn away from 'nation-building' understood as the preparations of self-government: see Thomas R. Mockaitis, 'Reluctant Partners: Civil-Military Cooperation in Kosovo', Small Wars and Insurgencies 15, no. 2 (2004): 38-69.
37. Michael Ignatieff has described the unintended consequence of the attempts at 'capacity-building' for self-government on the part of occupying powers as in fact 'capacity sucking-out': quoted in Francis Fukuyama, State Building: Governance and World Order in the Twenty-First Century (London: Profile, 2004), 139.
38. It is fair to say that the reports from, and analyses of, post-invasion Iraq are in general agreement that this phenomenon is starkly present there too. In a marshalling of this evidence, Benjamin H. Friedman, Harvey M. Sapolsky and Christopher Preble conclude that the Iraq failure is due not to the contingencies of poor planning but the intrinsic problems of occupation arising from the kind of tension I have identified. Thus they conclude that 'although the United States can improve its ability to manage occupations,... the principal lesson Iraq teaches us is to avoid them': 'Learning the Right Lessons from Iraq', Policy Analysis 610 (2008): 1-17, at 2.
39. General discussion of such problems of post-war occupation/international administration is offered by Simon Chesterman, You, The People: The United Nations, Transitional Administration and State-Building (Oxford: Oxford University Press, 2004), ch. 4, where he poses the dilemma as: 'how does one help a population prepare for democratic governance and the rule of law by imposing a form of benevolent autocracy?', at 127.
40. More radically critical of interventionist state-building in general is David Chandler, Empire in Denial: The Politics of State-Building (London: Pluto Press, 2006).
41. Some might theorise 'tragedy' rather more strictly, saying that it arises whenever one is incapable even of determining which is the least of the evils that exhaust one's available courses of action. But when the identifiable least-worst option is nevertheless to go to war, it seems unduly unsympathetic to the plight of the agents in question to say that this is not, still, a tragic situation.
42. On this argument, an occupied people may have the right to demand substantial post-bellum assistance from their occupiers, who might then be said to be under some kind of general (though presumably limited) obligation to do whatever they are asked. But the further argument of this section indicates the problem with the proposal as far as clinching the case for a restricted JPB is concerned.
43. The context of the 2005 Iraqi elections and the limited defacto writ of the resulting government illustrate the cautionary tale presented here.
44. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). Orend basically follows Rawls for the content of his 'minimal' justice: Orend, Morality of War, 237. Some, of course, reject the notion of there being any significant cosmopolitan dimension to justice but I would contend (though lack the space to provide the argument) no just-war theorist should affirm such a view and hence particularise their conception of justice in war.
45. See Rawls, Law of Peoples, 106, for the duty of 'well-ordered' societies to assist 'burdened' societies.
46. See its website: 〈www.un.org/peace/peacebuilding/index.html〉 for details of its remit. It was established in 2005 to 'marshal resources at the disposal of the international community to advise and propose integrated strategies for post-conflict recovery, focusing attention on reconstruction, institution-building and sustainable development, in countries emerging from conflict'.
47. Such instances are comprehensively documented in Chesterman, You, The People.
48. See Mockaitis, 'Reluctant Partners: Civil-Military Cooperation in Kosovo', for a good example, where over 500 NGOs and similar multinational (non-indigenous) organisations descended on the province in the wake of the 1999 intervention, presenting serious coordination problems.
49. Once more, Iraq provides depressingly ample evidence on this score: see Cockburn, The Occupation; and, for an insider's acclaimed view
50. see Rajiv Chandrasekaran, Imperial Life in the Emerald City: Inside the Green Zone (New York: Vintage: 2007).
51. I treat this as distinct from a theoretical account of when just combatants might be justified in quitting, and perhaps obligated to quit, a just war when it is not going well.
52. Though it may be difficult to do so in practice, it is important here to distinguish in principle between an instance where the content of 'justice' justifiably alters between time t1 and t2, and an instance whereby we retain the conception of justice posited at t1 but concede that we should settle for something less than justice at t2. Note, too, the crucial distinction between the latter and Yossi Beilin's argument (which I do not accept) that we should reject the 'just' peace goal at t1, on the grounds that the pursuit of justice is typically so strenuous that it would unjustifiably prolong a conflict in its name: 'Just Peace: A Dangerous Objective', in Pierre Allan and Alex Keller (eds), What is a Just Peace? (Oxford: Oxford University Press), 130-48.