After War Ends: A Philosophical Perspective 110701851X, 9781107018518

There is extensive discussion in current Just War literature about the normative principles which should govern the init

468 25 2MB

English Pages 258 [259] Year 2012

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

After War Ends: A Philosophical Perspective
 110701851X, 9781107018518

Citation preview

A f t e r Wa r E n ds

There is extensive discussion in current Just War literature about the normative principles that should govern the initiation of war (  jus ad bellum), and also the conduct of war (  jus in bello), but this is the first book to treat the important and difficult issue of justice after the end of war (  jus post bellum). Larry May examines the normative principles that should govern post-war practices such as reparations, restitution, reconciliation, retribution, rebuilding, proportionality, and the Responsibility to Protect. He discusses the emerging international law literature on transitional justice, and the problem of moving from a position of war or mass atrocity to a position of peace and reconciliation. He questions the Just War tradition, arguing that contingent pacifism is most in keeping with normative principles after war ends. His discussion is richly illustrated with contemporary examples, and will be of interest to students of political and legal philosophy, international law, and military studies. l a r r y m a y is W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University. His monographs include Global Justice and Due Process (Cambridge, 2011), Genocide: A Normative Account (Cambridge, 2010), Aggression and Crimes Against Peace (Cambridge, 2008), War Crimes and Just War (Cambridge 2007), and Crimes against Humanity: A Normative Account (Cambridge, 2005).

A f t e r Wa r E n ds A Philosophical Perspective L a r ry M ay

c a mbr idge u ni v er sit y pr e ss Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City Cambridge University Press The Edinburgh Building, Cambridge cb2 8r u, uk Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107018518 © Larry May 2012 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2012 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data May, Larry. After war ends : a philosophical perspective / Larry May. pages  cm Includes bibliographical references and index. ISBN 978-1-107-01851-8 (hardback) – ISBN 978-1-107-60362-2 (paperback) 1.  Just war doctrine.  2.  War–Moral and ethical aspects.  3.  Postwar reconstruction– Moral and ethical aspects.  4.  Consequentialism (Ethics)  5.  International relations–Philosophy.  6. Restorative justice.  7.  War reparations.  I. Title. U22.M388  2012 172′.42–dc23 2011052558 i s b n 978-1-107-01851-8 Hardback i s b n 978-1-107-60362-2 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgments

page  viii

1 Introduction: Normative principles of jus post bellum 1.1  How should we understand jus post bellum? 1.2 Transitional justice and meionexia 1.3  Peace as the object of war 1.4  Aggressors and defenders 1.5  Principles of jus post bellum 1.6 Summary of the arguments of the remaining chapters

1

2 6 10 14 19 23

Pa r t i R e t r i bu t ion

27

2 Grotius, sovereignty, and the indictment of Al Bashir

29

3 Transitional justice and the Just War tradition

44

4 War crimes trials during and after war

62

2.1  Morality and jus post bellum principles 2.2  Bashir and the international legal system 2.3  Indictment and arrest institutions in jus post bellum 2.4  Amnesties and pardons 2.5  Objections 3.1  The sixteenth-century ideas of jus post bellum 3.2  Grotius on promoting peace and protecting rights 3.3  Vattel’s solution to when the principles conflict 3.4  Objections 4.1  The Just War tradition 4.2  A defense of war crimes trials 4.3  The My Lai prosecution and more recent trials 4.4  War crimes trials and jus post bellum principles 4.5  Objections

v

30 32 34 37 40 45 48 51 56

63 67 70 75 80

vi

Table of contents

Pa r t i i R e c onc i l i at ion

83

5 Reconciliation of warring parties

85

5.1  A conception of reconciliation 5.2  Attitudes toward soldiers who participate in unjust wars 5.3  Assimilation of soldiers after war ends 5.4 Formulating normative reconciliation principles 5.5 Truth and reconciliation commissions and lustration 5.6  Objections

86 89 93 96 98 101

6 Reconciliation and the rule of law

106

7 Conflicting responsibilities to protect human rights

124

Pa r t i i i R e bu i l di ng 

1 43

8 Responsibility to rebuild and collective responsibility

145

9 Responsibility to rebuild as a limitation on initiating war

163

Pa r t i v  R e s t i t u t ion a n d r e pa r at ion 

181

10 Restitution and restoration in jus post bellum

183

6.1 Reconciliation and the rule of law 6.2 Reforming criminal trials in light of jus post bellum 6.3 Nontraditional trials 6.4  Instilling respect for persons and law 6.5  Objections 7.1 Responsibility to protect and human rights 7.2 State responsibility and the use of force 7.3  Human rights risks of the use of force 7.4  Adjudicating conflicts involving human rights 7.5  Objections

8.1  Historical roots of the responsibility to protect 8.2 Distributive and nondistributive responsibilities of States 8.3 Responsibility to build or rebuild capacity 8.4  Conflicting norms of sovereignty and protection of rights 8.5 Four Problems 9.1  Limitations on initiating war 9.2 Rebuilding as a jus post bellum principle 9.3  Initiating war and rebuilding 9.4  Objections

10.1 Restoration, rectification, and status quo ante 10.2  The concept of restitution 10.3 Special problems in the aftermath of war

107 110 113 117 120 125 128 131 134 138

146 147 151 155 158 164 166 171 173

183 186 189

Table of contents 10.4  Who is responsible? 10.5  Objections

vii 192 197

11 A Grotian account of reparations

200

Pa r t v Prop or t ion a l i t y a n d t h e e n d of wa r 

2 17

12 Proportionality and the fog of war

219

Bibliography Index

239 245

11.1  An account of reparations 11.2 Reparations at the end of war 11.3  Grotius’s argument 11.4  A Grotian response to Grotius’s expansive reparations doctrine 11.5  Leniency in reparations 11.6  Objections

12.1  The problem of indeterminacy 12.2 Retribution and reconciliation 12.3 Rethinking proportionality 12.4  The fog of war and the firebombing of Tokyo 12.5  Contingent pacifism and jus post bellum 12.6  The end of war 12.7  Concluding thoughts

201 204 206 209 211 214

219 221 225 228 232 234 236

Acknowledgments

In this book I provide the first full-length philosophical treatment of the often neglected third branch of the Just War tradition, the normative principles governing various practices after war ends, jus post bellum. I have written book-length treatments of the principles governing the decision to go to war, jus ad bellum (Aggression and Crimes against Peace, Cambridge, 2008) and principles governing conduct during war, jus in bello (War Crimes and Just War, Cambridge, 2007). As in my previous writings, I look to both historical and contemporary literatures to construct moral and legal principles at the end of war. Various parts of this book have been or will be published as free-­standing essays. An early version of chapter 2 was published in May, Wong, and Delston, Applied Ethics: A Multicultural Approach, 5th edition, Pearson/ Prentice Hall, in 2011. Chapter 3 will be published in a conference proceedings volume by Intersentia Publishers. Chapter 4 will be published in Law and War edited by Laurence Douglas for Stanford University Press. Parts of chapter 5 will be published in Nomos LIV: Getting to the Rule of Law, in 2011. A version of chapter 7 will be published in Human Rights: The Hard Questions, edited by Cindy Holder and David Reidy for Cambridge University Press. And chapter 8 will be published in Normative Pluralism, edited by Jan Klabbers and Touko Piparinen. I am grateful to various audiences for their feedback on versions of these chapters. I am especially grateful for being able to read multiple chapters of this work to various audiences in philosophy, law, and politics at Oxford University and at the Australian National University. Indeed, I was enormously gratified that the very first of the preliminary studies for this book was invited as the inaugural event at Oxford’s Institute for Ethics, Law, and Armed Conflict. I am also grateful for excellent feedback from audiences in Amherst, Boston, Nashville, New Orleans, New York, Sapporo, Stanford, St. Louis, and Wagga Wagga. viii

Acknowledgments

ix

My greatest debt is to Robert Talisse, who read the entire manuscript in penultimate draft and provided excellent critical comments. In addition, I would single out for special acknowledgment comments from Christian Barry, Gabby Blum, Geoffrey Brennan, Tom Campbell, Tony Coady, Jovana Davidovic, Marilyn Friedman, Bob Goodin, Seth Lazar, Jeff McMahan, Shinzo Mashima, Massimo Renzo, Michael Selgelud, Nancy Sherman, Henry Shue, Joan Stromseth, Margaret Walker, Kit Wellman, Scott Wiser, and Lea Ypi. The current drafting of the book is funded by a Discovery grant from the Australian Research Council and by funds from Vanderbilt University in the United States. I am grateful for the very strong support of Jeffrey Tlumak and Carolyn Dever at Vanderbilt University, as well as Tom Campbell at the Centre for Applied Philosophy and Public Ethics in Canberra. Without this institutional support I would never have been able to complete this project in a timely manner.

ch apter 1

Introduction: Normative principles of  jus post bellum

In this book, I draw on the work of Hugo Grotius to provide a Grotian account of the normative principles of jus post bellum, governing practices after war ends. In this sense I will aim to fill a gap in the literature concerning the Just War. There is extensive discussion of the normative principles that should govern the initiation of war, jus ad bellum, and also of the conduct of war, jus in bello. But there has been very little work on jus post bellum. In taking Hugo Grotius’s work, De Jure Belli ac Pacis, as my point of departure I will seek to ground the normative principles after war ends in the 400-year-old secular tradition of writing about the Just War. I will also attempt to connect this tradition with the emerging international law literature on transitional justice which is primarily concerned with how to move from a position of mass atrocity or war to a position of peace and reconciliation. In the end I will depart from the advocates of the Just War and argue that contingent pacifism is most in keeping with normative principles after war ends. In this introductory chapter I will set out what I take to be the six normative principles of jus post bellum: rebuilding, retribution, reconciliation, restitution, and reparation, as well as proportionality. I will also address one of the thorniest of issues: what difference should there be between victors and vanquished in terms of post war responsibilities. And even more importantly, how much difference should it make if the victor had begun the war without just cause? In one sense, this is a seemingly easy question to answer – the party who has done wrong should pay for damages caused by its wrongful behavior. If the war was begun wrongly then everything that follows is the responsibility of this wrongdoing party. But in another sense, this is a deeply difficult issue since the point of jus post bellum is to establish a just and lasting peace, and yet this is very unlikely to happen unless both parties see themselves as responsible for the post war reconstruction. 1

2

I n t roduc t ion

I will first address several conceptual problems with the very idea of having principles for post war reconstruction. Second, I will discuss how justice, especially transitional justice, should be conceived in debates about the end of war. Third, I will address how to think about jus post bellum principles in light of the fact that all wars have peace as their aim. Because of this fact, the principles governing a just peace seem relevant to whether war should be initiated at all. Next, I will address the thorny set of issues revolving around whether the aggressors should be the only party responsible for reconstruction and how responsibilities should be apportioned among victors and vanquished. Then the remainder of the chapter will set out in brief compass the normative principles of jus post bellum. Each of these principles will be the subject of at least one, and often several, succeeding chapters. Finally, I will discuss the substance of the various chapters that will follow, as I attempt to describe and defend a set of six normative principles governing practices after war ends. I will also discuss how the normative principles concerning war’s aftermath influence and are influenced by the normative principles governing the initiation and the conduct of war. 1.1   how s hou l d w e u n de r s ta n d

jus post bellum ?

Before getting into a discussion of the specific principles that should govern the situation after war ends, we need to think about what is involved in jus post bellum normative considerations. And the first place to start is with the idea of what “post” war means. This is a more difficult issue than one might initially imagine. Think of the Second Gulf War which began in March of 2003. By May of 2003, US President George W. Bush declared victory in this war. At that time only a few hundred US soldiers had been killed. By August of 2010, when US President Barrack Obama declared an end of combat operations, nearly 3,000 more US troops had died since Bush declared victory. And even as late as the middle of 2011, tens of thousands of US troops were still in Iraq. When did the Iraq War move into its “post” phase? Surely it wasn’t when Bush declared victory since combat – with 3,000 US casualties – continued for seven more years. When Obama declared an end to combat operations, perhaps then the Iraq War ended. But what of all of the troops left behind – with casualties continuing even though these troops were mostly not directly involved in combat? Then remember that after the “end” of the Second World War, large groups of US troops remained in Germany and Japan – indeed, US troops remain there as of 2011. So, it

Introduction

3

is hard to tell when war has ended just by looking at when major combat operations have ended, or when most troops have returned home. The “post” in post war discussions may refer to when serious questions of peace building occur.1 Typically this is after hostilities have ceased and when there has been some kind of truce or peace treaty. But there will be many wars where there is never a formal peace treaty and yet where surely there is an end of the war. And in other cases there will never be “peace building” at all, even as the war surely comes to an end. For this reason, and reasons given in the previous paragraph, I think that we should be flexible in how we regard the “post” in jus post bellum. Helen Stacy has suggested that rather than try to give a definitive statement of what “post” means, instead we simply use the term “mopping up.”2 On this creative, and somewhat whimsical, way to resolve this thorny conceptual issue, jus post bellum refers to any principles that govern the mopping up efforts, namely the efforts at the end and after the end of war that lead into a position of peace. In this way, we don’t have to decide precisely when war ends but only when the practices of mopping up begin. It is conceivable that mopping up efforts occur even while it is pretty clear that war is still waging, although often this will be a very dangerous thing to do. Later I will argue that certain decisions both about whether to go to war and how to wage war should indeed be influenced by considerations of jus post bellum. In this sense, the borders of these three Just War branches are permeable anyway so it should come as no surprise that “post” war is difficult to define exactly. It seems that today, especially in asymmetrical wars, there is no ceasefire or anything that could be called the formal end of a war. It is for this reason that I think that we should understand the phrase “after war ends” as relative to where things had been in an earlier period of hostile relations. War “ends” in asymmetrical wars when hostilities have diminished sufficiently so that rebuilding can be practically discussed. Or to put the point in a slightly different way, war “ends” when both parties are ready to explore what would constitute a just and lasting peace. There might still be considerable distance to traverse in order to reach this goal but the parties are talking about the prospects for peace rather than the continuation of hostilities in the way they had been in the recent past. Here the category of “after war ends” is relative to where parties were before 1 I thank Hilary Charlesworth for this suggestion. 2 Helen Stacy’s remarks were made at a workshop on “Ethics, Jus Post Bellum, and International Law,” August 25, 2010, in Canberra, Australia.

4

I n t roduc t ion

compared to where they are now in terms of goals to be pursued. Justice considerations of jus post bellum then come into the fore when parties previously focusing on hostilities begin to focus instead on peace. Another issue to think about is whether we can separate further the practices that lead to a war’s end from the practices that are instrumental in reestablishing the peace. I follow David Rodin’s helpful categorization of the way a war is brought to an end, called jus ad terminationem belli, or bellum terminatio for short, which concerns “victory, defeat, stalemate, or intervention by a third party.” He distinguishes bellum terminatio from “ jus post bellum proper, which concerns the moral principles after a transition from war to peace has been achieved.”3 I will say very little about bellum terminatio, even though past theorists of the Just War tradition were quite concerned about the terms of peace treaties, for instance. I will restrict myself to the justice-based considerations after war ends, jus post bellum proper, since this topic has been greatly underexamined, and yet is of the highest importance today. Although the morality of peace treaties, for instance, is not of high priority today, the exception is whether to accept, as just, amnesty provisions of those treaties, especially when the amnesties are directed at the leaders of the aggressor or genocide-inducing State. I will say a bit about this issue of amnesties and have addressed it elsewhere.4 What is today called transitional justice is thus misnamed if we accept Rodin’s suggestion, since it concerns pretty much the same as jus post bellum proper.5 A good book is yet to be written about how to regard bellum terminatio, but I will not attempt to write it here. A further issue is whether the normative principles are conceived as moral or legal or some combination of these two. The jus post bellum, as well as the other branches of the Just War, were first discussed by the medieval theorists who were largely natural law theorists. According to natural law doctrine, there is not a clear line drawn between the moral and the legal. Both moral law and positive law participate in the natural law governing all that transpires on earth; and the natural law participates in God’s eternal law. The positive law may be somewhat narrower in scope than the moral law, but there is a sense that law and morality 3 David Rodin, “Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression,” in Carsten Stahn and Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, The Hague: TMC Asser Press, 2008, p. 54. 4 See Larry May, Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005, ch. 13. 5 The exception is Ruti Teitel, who is concerned with both the transition from war to peace and the justice of the peace, in her book, Transitional Justice, NY: Oxford University Press, 2000.

Introduction

5

cannot diverge much from each other since they are based in the same natural law. Contemporary adherents of natural law theory hold that morality informs and limits the positive law. And the laws of war thus end up being both moral and legal. My view is that jus post bellum principles are primarily moral principles that are meant to inform decisions about how international law is best to be established down the road. Here it is important to note that on this construal, jus post bellum principles are not legal principles themselves. Jus post bellum principles are normative in that they are moral norms and they tell us what should become law. But until there is some lawmaking act, such as an international convention (a multilateral treaty), what I will identify as jus post bellum principles are primarily moral norms that have strong force in our thinking about what norms should be enacted into international law. Legal theorists have been somewhat confused about the other two branches of the Just War tradition, the jus ad bellum and jus in bello, because they both have moral force and they have already been instituted as law by multilateral treaties, such as the four Geneva Conventions of 1948. But these other two branches of the Just War tradition, like the jus post bellum, are in my view primarily moral norms. In setting out a group of jus post bellum principles I am making a plea for them to become instituted, but my arguments in favor of having them become legal norms should not be confused with thinking that they already have legal status, which they do not. One of the jus post bellum principles, the principle of proportionality, is really a meta-norm in that it is meant to function as a qualification on the other norms. And in this sense it is not as readily able to be instituted as a legal norm.6 Yet, it is also true that such a principle of jus post bellum will strongly inform what international laws should be instituted. Finally, it might be asked, who is the intended addressee of these jus post bellum principles? Here the answer is also not as easy as one might think. It would be easy to say that the addressee is any political leader who contemplates taking his or her country into war. But it is rare indeed when political leaders consider the Just War tradition in their war-making decisions, let alone in their decisions about how to act after war is over. Rather it is more likely that it is the average citizen of a State that is about to embark on war, or is already enmeshed in war, who would consider the morality and legality of how wars ought to end. And the average citizen is

  I am grateful to Jovana Davidovic for discussion of this point.

6

6

I n t roduc t ion

the one who will have to say no to wars that are fought in such a way that peace is unlikely to result from the war that a State’s leaders are mounting. As has been true of the Just War tradition throughout its existence, jus post bellum is primarily addressed to those who are already predisposed to act morally and who care about peace. Indeed, it seems to me that this is all that can be hoped for, namely to add to the conscientious and careful reflections of members of the citizenry of a State that is on the verge of, or already embarked on, a path to war. Like all writing about morality, it is not obvious who all is included in the intended target audience. But this much seems clear: in cases of jus post bellum reflection, the audience is largely humanity, with special attention to those members of humanity who can make a difference in decisions about how to act at war’s end. This focus on humanity is in keeping with Hugo Grotius’s views as well as the Preamble of the United Nations Charter, as we will see. 1.2  t r a ns i t ion a l j us t ic e a n d

meionexia

Transitional justice overlaps with the older idea of jus post bellum, which is also under-theorized, in that both concern how to regard just practices and institutions after war or mass atrocity has come to an end. Transitional justice often concerns the way to move from an authoritarian regime that did not respect the rights of the people to a democratic regime that does respect rights. Jus post bellum normally concerns how to move to a situation of stability after war. But both transitional justice and jus post bellum involve reconciliation with a violent past. The justice considerations here are often markedly different from those concerning traditionally understood distributive or compensatory justice. This is because the aim is to achieve a just and lasting peace in a society that has been ravaged by war and human rights atrocities such as genocide. And to accomplish this goal of justice certain compromises must be reached, including those concerning rights, even as the very rights compromised are normally thought to be the cornerstone of traditional ways to conceive justice. In my view, jus post bellum as well as transitional justice calls for moderation because that is often what is needed for previously conflicting groups to achieve lasting peace. In considering post war justice I will start with Aristotle, who first set the modern terms of debate about justice and first gave the traditional account of justice in distribution and

Introduction

7

compensation. Aristotle begins Book v of his Ethics by asking “what sort of a mean justice is, and what the extremes are between which justice lies.”7 Initially, Aristotle proposes that “the unjust man takes more than his share,” whereas the just man takes or demands only what is his due.8 But in the very next paragraph, Aristotle says: The unjust man does not always choose the larger share (pleionektes); of things that are bad in themselves he actually chooses the lesser share, but he is nonetheless regarded as trying to get too much, because “getting too much” refers to what is good, and the lesser evil is considered to be in some sense good.9

One is tempted to say that justice for Aristotle lies between the extremes of taking too much (pleionexia) and taking too little (meionexia), and context matters, except for the fact that Aristotle does not directly mention meionexia. But he clearly does hold that distributive justice involves taking only what is one’s due, the epitome of justice. In my view, Aristotelian moderation is also the key to transitional justice. Even though Aristotle does not consider meionexia as a virtue, he does set the stage for such a possibility. Aristotle’s general idea is that we must distinguish two kinds of good: things good in themselves and things good for the individual. The aim of moral education is that eventually people will become habituated so that they see the things that are good in themselves as also good for them. But part of the task of pursuing things good in themselves is that one restrain oneself, perhaps demanding less than is one’s due, and not pursue some things that may be in one’s interest but are opposed to what is good in itself. This is one of the types of moderation that is crucial for living the virtuous life for Aristotle. While Aristotle clearly does not recognize meionexia as a virtue, demanding less than is one’s due is the kind of moderation that Aristotelian virtues epitomize. Moderation is best seen as restricting behavior away from excesses and deficiencies. Aristotle seems to see meionexia as a deficiency and pleionexia as an excess, although he never makes this explicit. Yet, Aristotle also says that what is a deficiency in one situation could be a virtue in another situation. I will argue that in certain situations, especially in transitions from war to peace, meionexia may indeed be something like a virtue, although surely not in all cases and situations. Aristotle, Nicomachean Ethics, 1129a4–5, trans. J. A. K. Thompson, Penguin Books, 2004, p. 112. 8 Ibid., 1129b2, p. 113.  9  Ibid., 1129b7–10, p. 114. 7

8

I n t roduc t ion

One of the few references to meionexia, the disposition to accept less than one is due, comes from Xenophon. In his work, The Education of Cyrus, he says the following: Thus they were encamped by regiments, and in the mere fact of common quarters there was this advantage, Cyrus thought, for the coming struggle, that the men saw they were all treated alike, and therefore no one could pretend that he was slighted, and no one sink to the confession that he was a worse man than his neighbors (meionexia) when it came to facing the foe.10

Here meionexia is thought of as a vice for soldiers in that soldiers should not demand for themselves less than was their due. Indeed, Xenophon believes that disabusing soldiers of their tendency to think that they were not as capable as their fellow soldiers was a key source of providing them with a conscience well-framed for battle: Moreover the life in common would help the men to know each other, and it is only by such knowledge, as a rule, that a common conscience is engendered; those who live apart, unknowing and unknown, seem far more apt for mischief.

To have a military conscience, soldiers needed not to think too little or too much of what was their duty. In this respect, Xenophon partially followed Aristotle in thinking of pleionexia, demanding too much, and meionexia, demanding too little, as the vices framing the mean of justice. But in another respect Xenophon does not follow Aristotle who at least allowed for the possibility that something like meionexia could be a virtue in certain situations, since conscience favored moderations and called for a consideration of circumstances. But perhaps this is because Xenophon was addressing soldiers and Aristotle was addressing Athenian civilians, or perhaps because Xenophon was addressing wartime, not transitional, situations. It appears that the only ancient philosophers who saw meionexia as a virtue were the Cynics, who were also arguably the first cosmopolitans.11 As far as I am aware, Hugo Grotius is the first modern thinker to talk of something like transitional justice in terms of meionexia. In his early work, De Jure Praedae (1605), on why the Dutch fleet should not have to 10 Xenophon, Cyropaedia (The Education of Cyrus), trans. Henry Graham Dakyns, rev. F. M. Stawell, London: Macmillan, 1914, Book 2, ch. 1, sec. 25. 11 William Desmond, Cynic, Berkeley: University of California Press, 2008, p. 124, says that “Pseudo-Lucian uses an unusual antonym for pleionexia (‘wanting too much’)  – meionexia (‘wanting too little’): the Cynic prays that he may be able to persevere in his virtue of meionexia.”

Introduction

9

give back booty seized in just victories against the Spanish fleet, Grotius follows Xenophon in thinking of meionexia as a vice for victors: Justice consists in taking a middle course. It is wrong to inflict injury, but it is also wrong to endure injury … the truly good man will be free from meionexia, that is to say, from the disposition to accord himself less than his due.12

But Grotius here also regards meionexia as a vice for those who are victims in war – saying it is wrong to endure injury because one thinks one does not deserve to be spared. Interestingly, in his later writings, especially his monumental work De Jure Belli ac Pacis (1625), Grotius continues to regard meionexia as a vice at least concerning how victims should view what is their due. But the general idea of victors taking less than they deserve is seen as a virtue insofar as it is part of a general strategy so that peace might more easily be achieved. I propose that we follow the later works of Grotius and see meionexia, at least in some situations, as something that victors are counseled to accept in order better to achieve humanitarian goals in the transition from war or mass atrocity to peace. But meionexia should be counseled against for victims in that they should still demand all that is their due, and the world community should come together to provide compensation for victims of war and mass atrocity. In this respect there is an asymmetry in the idea of meionexia that needs further support. Historically, individual victims have often been forced not to get proper compensation at the end of war or mass atrocity, especially if the victims came from the “unjust” side of a war. On the other hand, victors have been treated as fully warranted in demanding often crushing penalties from vanquished nations, especially if the vanquished were considered to have engaged in an unjust war. My view is that an asymmetry can be seen as a plausible strategy, but not the one that has been traditionally accepted. Rather, in my view transitional justice demands that victims receive their due, even if victors may have to provide the majority of the compensation for victims to achieve their due, and even though victors will thus not get what is their due. This asymmetry is premised on the idea that those who are most vulnerable must get what is their due first, in situations of scarcity. Vulnerability to death and serious physical harm should be the criterion that we use to decide who should not be asked to act from meionexia 12 Hugo Grotius, De Jure Praedae (On the Law of Prize and Booty) (1605), trans. Gwladys L. Williams, Oxford: Clarendon Press, 1950, p. 3.

10

I n t roduc t ion

and demand less than their due. In wartime situations, the most vulnerable are often the victims of war, and often these are civilians on both sides of that war. Those who are not victims, as I will later argue, should be the ones who are counseled to act from meionexia. In discussion of the rules of war, other forms of asymmetry have been recognized, such as the longstanding view that civilians should be treated much better than soldiers during war. The rationale for this so-called principle of discrimination is similar to that for recognizing the claims of victims before the claims of nonvictims, especially victors – namely a concern for first protecting those who are most vulnerable. Here we might remember that at the end of the First World War, Germany was heavily penalized so that the victorious Allies could get their due, at least in part at the cost of victims in Germany not getting compensated. And many believe that German resentment led to the Second World War. It is also noteworthy that at the end of the Second World War the victorious Allies paid most of the costs of reparation and restitution for the victims in Germany and Japan, in order to achieve, what has in fact transpired to be, a long-term just peace in those nations. 1.3  pe ac e a s t h e obj e c t of wa r Nearly everyone to have written on the subject of war would agree that the object of a just war is the achievement of a just and lasting peace. Suarez says that “one may deny that war is opposed to an honorable peace” but one cannot deny that war “is opposed to an unjust peace, for [war] is more truly a means of attaining peace that is real and secure.”13 And Grotius says it is a mistake to make a blanket argument against the “justice of wars, so long as there are men who do not suffer those that love peace to enjoy peace.”14 Wars of self-defense are just because they have a just peace as their object, as are wars fought for the defense of innocent others. Wars fought for territorial expansion or for conversion of the heathens are generally not considered just unless there is some connection between these wars and the object of a just and lasting peace. Israel for instance argued that its war, to expand into the Golan Heights and the West Bank in its Six Day War in 1967, was justified because securing these lands was claimed to be necessary for the long-term peace in the region. 13 Francisco Suarez, Disputation XIII, De Triplici Virtute Theologica: Charitate, (“On War,” in Selections from Three Works: Charity) (c.1610), trans. Gwladys L. Williams, Ammi Brown, and John Waldron, Oxford: Clarendon Press, 1944, p. 802. 14 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925, p. 71.

Introduction

11

In international law, the United Nations Charter seems to make war illegal unless it has as its goal the reestablishment of international peace. Here is how the Charter’s Preamble begins: We the People of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.

We get a strong sense of the prohibition of war and the disposition toward peace when this hortatory statement is read in combination with Article 2/4 of the Charter: 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.

Indeed, it is common in international law to say that the United Nations Charter has made war illegal. But realists argue that since the founding of the United Nations war has actually increased and there has been no significant pressure toward making war illegal. For even as there is Article 2/4 to add strength to the Preamble’s lofty goals, there is also Article 51 of the Charter that brings us back down to earth. Article 51 says: 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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Here, the realists argue, we can see that wars of self-defense and even wars of humanitarian intervention have not been made illegal by the Charter. Yet, there is no denying that the United Nations was formed on the idea that especially world wars, like that fought in Europe and Asia in the first half of the 1940s should not be allowed to happen again. And even Article 51 is really only an emergency exception to Article 2/4 since in normal circumstances it is only with Security Council authorization that armed conflict can be legally initiated by a member State. In my view, the Preamble is not window-dressing but a sincere statement of how the world thinks about war and armed conflict initiated by one State against another. While it is an overstatement to call the United Nations pacifist,

12

I n t roduc t ion

at least in the traditional way pacifism has been understood, it is not difficult to argue that the United Nations sees peace as the ultimate object of any type of legitimate armed conflict. It is thus curious that when theorists have discussed the justice of initiating war they have not looked ahead to what is the moral character of the end that is likely to be produced by the war. And it has not been recognized in contemporary theoretical discussions that the end of war must be peace. Indeed, the character of the peace has generally not been discussed in terms of the conditions set forth for justly initiating war. I will try to remedy this deficiency by discussing principles governing the character of peace at the end of war, jus post bellum, and I will argue that such principles need to be considered in any thorough treatment of the Just War, including consideration of justly initiating war, jus ad bellum. The proper moral answer to the question “why do we fight” must be “to achieve a just peace” and in this sense the questions of jus ad bellum, which concern the moral basis for initiating war, must be intimately linked to questions of jus post bellum, which concern the moral basis for the end of war. The most important, if not the only, just basis for initiating war is creating a situation of just and lasting peace out of a situation where there is none at the moment, or where it is seriously threatened. This is the positive doctrine that follows from the idea that the object of war must be a just and lasting peace. And there is also a negative doctrine as well, namely that when war has little hope of achieving a just and lasting peace its initiation is not likely to be morally justifiable. This negative doctrine may not seem all that important on first sight, but I think it is relevant to more cases than is often recognized, thus lending support to the idea of contingent pacifism, where all wars are prima facie morally objectionable. This switch in the burden of proof can make a big difference in how we view the answer to the question “why do we fight?”15 In many cases, if not most, the expected moral character of the end of the war is questionable enough that we should wonder whether or not the just cause for the war really will justify the initiation of the war, given that all wars are ultimately justified or not by reference to the state of the peace at the end of the war. Indeed, we should wonder whether what appears to be a just initiation of war in terms of a just cause really is a just cause in these situations. And the main reason for this is that just 15 I have elsewhere discussed the influence of similar considerations with reference to jus in bello principles. See Larry May, War Crimes and Just War, NY: Cambridge University Press, 2007.

Introduction

13

initiations of war all turn ultimately on pursuing the object of a just and lasting peace. And when it is known that a war will have a high probability of ending a certain way, then it certainly seems relevant to the justice of initiating war what the moral character of the end of war will likely be. And if the moral character of the end of most wars is not that a just and lasting peace is likely to be achieved, then it appears that there will not be very many just wars. One way to respond to the argument I have been developing is to argue that the post war considerations are indeed relevant to the overall justifiability of the war, taken as a whole. But there is no reason to think that the justice of the initiation of the war needs to be affected by such jus post bellum considerations as likelihood of achieving a just and lasting peace. This way of bifurcating the Just War considerations was once quite popular, but today many theorists in the Just War tradition have come to recognize that the parts of the Just War tradition are not utterly separate. I have argued in favor of some such linkings and against others.16 But I generally find it hard to understand how the parts could be kept completely separate given that people often know quite a bit about the way war is likely to turn out even as early as the onset of the war. I suppose it could also be argued that peace is not the object of war, but rather war involves righting wrongs or is a last resort to defend oneself. I would not disagree that these are common and proper ways to construe justice in the initiation of war. But the question I have been pursuing is what lies beneath the elements of jus ad bellum. Some of the recent rejections of punishment as a just cause have arisen due to the recognition that punishing does not advance the goal of peace in many situations, and that war in any event is a blunt instrument to use for such precise matters as grading punishment so that it is proportionate to wrongdoing. Of course, the bluntness of war as an instrument also makes it not always easy to tell what the effects of war will be on the possibility of a just and lasting peace either. If the object of war is a just and lasting peace, then all of Just War considerations should be aimed at this goal, and the branch of the Just War tradition that specifically governs the end of war, jus post bellum, should be given more attention, if not pride of place, as opposed to being neglected as is often the case. Theorists of the Just War cannot ignore the moral character of the end of war in their deliberations about which are 16 See ibid. and Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008.

14

I n t roduc t ion

the positive just causes of war, or at least considering whether some just causes are not immediately overridden when the likely post war consequences of waging war for those causes are spelled out. And as I have elsewhere argued, similar considerations will also mean that when we reflect on the jus in bello, the effects of various tactics on the post war environment should also be taken into account.17 The normative principles of jus post bellum, which I will eventually describe and defend, are meant to set out a set of desiderata for achieving a just and lasting peace after war ends. These principles tell us how to think about justice after war’s end. The principles are moral in nature but because they are justice-based moral principles, and since justice-based principles have an especially strong connection to law, these principles are strongly suggestive of how law should be. The application of these principles is faced with some serious conceptual difficulties from the beginning, not the least of which is who should be held responsible for the ravages of war. We next discuss how to treat those who are aggressors as opposed to those who are defenders, as well as how to treat victors as opposed to those who are vanquished. After taking up these special questions I will outline and begin to defend my version of the six normative principles of jus post bellum. 1. 4   ag g r e s s or s a n d de f e n de r s It is commonly said, and affirmed by most people pre-reflectively, that if there are moral rules of justice concerning the aftermath of war, they apply differently to the victors than they do to the vanquished, and that this is especially true if the victor was an unjust aggressor.18 In this section I will challenge this common assumption, arguing that it is true only in the case where the post war damages are due to the victor’s own specific wrongdoing. It is certainly true that no party should be allowed to profit from its own wrongdoing. But when a war is won by the unjust side, as I will argue, principles of jus post bellum still apply, where even the vanquished party has duties of various sorts. This is at least in part because, 17 See Larry May, “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, vol. 25, no. 2, April 2011, pp. 95–111. 18 Both Brian Orend and Gary Bass assume that jus post bellum principles apply when the victor is the party that began the war with just cause, and exclude entirely cases where the victor lacked just cause. See Brian Orend, The Morality of War, Peterborough, ONT: Broadview Press, 2006, pp. 162–63; and Gary J. Bass, “Jus Post Bellum,” Philosophy & Public Affairs, vol. 32, no. 4, Fall 2004, p. 408 and elsewhere.

Introduction

15

even in an unjust war, the party who is aggrieved may still have done things during the war that it now has a duty to repair. Some have contended that if an unjust aggressor has won the war, everything about the post war situation is unjust. Brian Orend says: if an aggressor wins a war, the peace terms will necessarily be unjust. The injustice of cause infects the conclusion of the war, as readily as it infected the conduct … And jus ad bellum sets the tone and context for the other two categories, and to that extent is probably the most important … Once you’re an aggressor in war, everything is lost to you, morally.19

I have argued against such a view concerning the relationship between initiating war and the conduct of war.20 Even aggressor States can act well on the battlefield; and even States that initiate war justly can violate the rules of war on the battlefield. And it seems to me that this doctrine is wrongheaded also about the relationship between the way war is initiated and what happens after it ends. Orend’s point, about how the fact that a party is an aggressor determines all other aspects of Just War, would be more plausible if he concerned himself with bellum terminatio instead of jus post bellum. And it seems at times as if Orend is indeed mainly thinking about bellum terminatio rather than jus post bellum. But at other times he is clearly also discussing jus post bellum proper, and then I would raise various objections. In addition, even about bellum terminatio, I would still think that Orend’s bald statement lacks important nuance concerning various situations that might arise in the way that peace treaties, for instance, are negotiated. And Orend does raise some of these issues when he asks about whether or not it is just to demand unconditional surrender. Yet Orend does not seem to see that this issue can arise regardless of which party wins the war, and seemingly arises with greater intensity if the war has been won by the aggressor. The case for jus post bellum not being contingent on jus ad bellum is even more plausible than between jus in bello and jus ad bellum. Indeed, there is a relationship between jus ad bellum and jus post bellum and, as I will argue, it is clearer that jus post bellum influences jus ad bellum than the other way around. By this I mean that certain jus post bellum considerations, such as the duty to rebuild, can affect the jus ad bellum, at least understood broadly to include likelihood of success. If there is a duty to rebuild on the part of the victor, then war should normally not be 19



Brian Orend, The Morality of War, p. 162.   See May, Aggression and Crimes against Peace.

20

16

I n t roduc t ion

initiated unless State A has the means and will to rebuild the vanquished State B’s infrastructure that will be damaged by State A’s military actions. And such considerations seem at least to be relevant to the question of whether jus ad bellum aggression colors all other considerations. There are jus post bellum duties on both sides at the end of a war. If the victorious party is the party that justly initiated war, then it may have duties to rebuild and reconcile, etc.; and the losing side which was the aggressor also obviously has duties at the end of war. The victorious side need not rebuild if the damages to the vanquished were a result of its own specific wrongdoing, but not all damages are of this sort. It may be that the victorious side, despite initiating war justly, nonetheless caused damage to the vanquished side by its wrongful behavior during war. Not all damage is morally attributable to the party who failed justly to initiate war. Clearly, the most difficult case concerns a war won by the State that was the aggressor. It may be true that but for the aggression all of the damages of war would not have occurred. But it may also be true, as a matter of the most direct causation, that the damages would not have occurred if the victorious State had not employed immoral tactics during the war. A later immoral act is not nullified or rendered less important if it is causally related to some other party’s immoral act. History is littered with examples of States that have initiated war justly but that have nonetheless violated the rules of war concerning tactics. One need only think of Britain in the Second World War, the supposedly paradigmatic just war, engaging in many notoriously immoral tactics, including the firebombing of Dresden. Or think of the US firebombing of Tokyo as another infamous tactic of the Second World War. These acts of firebombing population centers should trigger post war duties of restitution, reparation, and rebuilding to Japan and Germany, to say nothing of retribution, despite the fact that Japan and Germany were clear-cut aggressors when the war was initiated. The prior bad acts of Japan and Germany in initiating aggressive war against the Allies do not negate, although they may partially mitigate, the wrongness of the firebombing of Axis cities by the Allies. There are other cases, perhaps the majority of cases, where at the time of the initiation of a war it was unclear who was the aggressor and who had justly initiated war. Indeed, in many cases it may remain contested at the war’s end who was the aggressor and who had justly initiated war. In these contested situations, which may not be determinatively decided by historians until a much later time, it makes little sense to speak of the

Introduction

17

objectively aggressive party at all, even if this is a correct characterization. Instead, the post war duties and responsibilities should be shared, or at least not decided simply on the basis of who the aggressor was and who justly initiated war. Indeed, it may have seemed clear at the initiation of a war who was the aggressor, but later the tenor of the war may change so that this early determination is not the most salient at the end of war. It may also be true that there are several causes of a given war, some of which are just and others of which are not, and the war may change over time from being primarily based on just cause to a war that is primarily based on questionable moral grounds.21 As an example, consider the US war against Iraq so as to stop Iraqi deployment of weapons of mass destruction, where after these weapons were not found there was a switch to Iraqi self-determination as the just cause. If there had not been this avenue open, one could imagine that the war was left justified, if at all, by the cause of pursuit of oil. Or consider cases where both sides either justly initiated war, or both sides unjustly initiated war. These considerations may have some role in the determination of post war duties, but they should give us pause in continuing to think that the party that unjustly initiated war is responsible for all of the damage done during the war. So, there may be duties on the part of the victors regardless of whether the victor was the aggressor or defender in the initiation of the war. If a State is the aggressor, there will be duties of restitution or repair, but that State will not necessarily have to provide restitution or repair for all of the damage caused by war. Even the defending vanquished State may have duties of restitution and repair. And in addition both sides will have duties of reconciliation. As we will next see, a vanquished party has duties of reconciliation, which may even include duties toward the aggressor party. Jus post bellum principles aim at the creation of a just and lasting peace. In order to achieve this peace, it is incumbent on both previously warring parties to work together in various ways. It may be true that the victorious party did not initiate, and would not have initiated, the war. And in this respect the principles of jus ad bellum are not symmetrical. But once the war starts, concerning tactics and concerning peace, the principles of Just War govern symmetrically. This is not unfair, since justice comes in various dimensions and can be offended at all stages of a war, even after the war ends. Especially at the end of war, justice considerations are not 21 See Darrell Moellendorf, “Jus Ex Bello,” Journal of Political Philosophy, vol. 16, no. 2, June 2008, pp. 123–36.

18

I n t roduc t ion

necessarily to be determined by who was in the wrong, or at fault, in starting the war. War is terrible, and the consequences of war are truly awful. Cities may be destroyed, and economic infrastructure so badly damaged that it may take generations before a vanquished State can become self-sufficient again. It serves no one’s interest, least of all everyone’s interest in a just peace, for the vanquished to be allowed, or forced, to remain in a devastated condition following the end of war. While it may seem that retribution is served by such a fate for the aggressive and now vanquished party, there are many other dimensions to a just peace than retribution, as we will see. Even if retributive justice is served by letting the vanquished suffer for generations, reconciliation will often not be advanced, setting the stage for future hostilities. This was one of the lessons of the First World War, and that caused the victors of the Second World War to spend considerable sums of money to rebuild Germany and Japan, despite the fact that these vanquished States were clearly the aggressors concerning the initiation of the wars in Europe and the Far East. While most of the arguments advanced so far may seem to turn on prudential considerations, such as that the rebuilding will not occur without the aid of the victorious, there is a strong moral dimension here as well that can be seen by reference to human rights. Future hostilities are detrimental to human rights of both parties, and even the build-up to another war is likely to include serious human rights problems. Since the protection of human rights is the cornerstone of justice, and since attaining a just peace means one that protects human rights, when the protection of human rights calls for a certain strategy this strategy is not merely prudential but also moral. And in any event, I would deny that moral and prudential considerations can or should be fully separated. Following in a general Hobbesian mode, I have previously suggested that what appear to be moral principles are often grounded in prudential considerations.22 One of the main considerations is that sometimes it happens that the wronged party must help the wronging party, so that human rights can be secured for the populations of both parties. In the unjust vanquished population, there are normally many people who did not agree with or participate in the initiation of the aggressive war. It is their human rights that will be put in jeopardy if rebuilding and repairing do not occur in the near future. The key to jus post bellum is that the rule of law is ­reinstated, or instated if it was not there before. And the rule of law is needed to 22 See my discussion of a Hobbesian framework for thinking about issues of war and peace in the first chapter of my book, Crimes against Humanity: A Normative Account.

Introduction

19

protect human rights in the near and distant future. But establishing or reestablishing the rule of law is difficult to do if the economic situation of the population is dire. Hence, as I will later show, rebuilding and repairing a society’s economy is crucial for the rule of law and for human rights protection within a vanquished society. In spite of the various issues I have just enumerated, both the victorious and the vanquished have roughly the same obligations after war ends, namely to reestablish a rule of law that will protect human rights and create a just and lasting peace. From this obligation it follows that there are obligations of rebuilding the society’s infrastructure, providing retribution for the most egregious individual wrongdoers, repairing relationships, restoring lost property, and ultimately reconciling, which involves understanding how wars can be prevented especially in light of the role of bystander complicity. And all of this is to be accomplished in a manner that is proportionate, where the burdens do not fall more heavily on one party than another, except perhaps if the damage to be repaired occurred due to the wrongdoing of one of the parties. And even here, I will argue that it is the wrongdoing of individuals not of the State that is to be the guiding idea. I next turn to a specific characterization of each of the six normative principles of jus post bellum. 1.5  pr i nc i pl e s of

jus post bellum

The first normative principle of jus post bellum is the principle of rebuilding. It concerns aiding especially vanquished States to support the human rights of their citizens: (1) There is an obligation to aid States to rebuild (or build) the capacity to protect human rights.

This requires that States aid especially vanquished States to rebuild infrastructure. But it also calls for aid to a State to rebuild (or build) the rule of law. This is a form of collective responsibility that falls in a distributed way on the society of States, and most directly affects the leaders of States. Rebuilding the capacity to protect human rights is crucial for there to be a just and lasting peace. The second normative principle of jus post bellum is also related to the rule of law, namely the retributive principle: (2a) There is an obligation to engage in actions to support institutions that promote the international rule of law, as long as such actions do not jeopardize basic human rights.

20

I n t roduc t ion

One of the most important ways that retribution can be accomplished is by supporting international and domestic legal institutions, judges, and lawyers who act as a check against arbitrary and capricious actions of those in the executive branch of government. In addition: (2b) There is an obligation to extradite heads of State to international courts, if valid international indictments and arrest warrants have been issued, for violations of basic human rights, unless there is overwhelming evidence that such extraditions will on balance adversely impact human rights.

So, the principle of retribution requires that those responsible for serious wrongdoing during war, especially State leaders, be prosecuted or extradited to international tribunals that have properly indicted these leaders. This principle is qualified to exclude situations where indicting or prosecuting a State leader would adversely affect human rights protection overall. If prosecution or indictment of State leaders will not on balance harm basic human rights, but some human rights are jeopardized nonetheless, then there is a subsidiary principle that kicks in, the reasonable compensation principle: (2c) There is an obligation to engage in actions to support a “just” peace, where minimally this involves reasonable compensation to individuals for rights violations.

This principle both modifies the retributive principle and is closely related to the third and fourth normative principles of jus post bellum. The third normative principle of jus post bellum is the restitution principle which itself provides an important form of compensation: (3) There is an obligation for those who have suffered losses to receive restitution in all cases where practically feasible, with the only possible exception being the case where the losses are due to the loss sufferer’s own wrongdoing.

This principle is different from the next, the reparations principle, in that restitution concerns return of lost or stolen goods, whereas reparation concerns repair or rectification of goods to the prewar form they were in, where possible. The fourth normative principle of jus post bellum is the reparations principle, sometimes thought to include the restitution principle within it: (4) There is an obligation for those who have sustained damages to receive reparation in all cases where practically feasible, with the only possible exception being damage that is due to the loss sufferer’s own wrongdoing.

Introduction

21

Reparations are absolutely crucial for there to be a return to good relations between the two previously warring parties. In this sense, reparations help facilitate the fifth principle. The fifth normative principle of jus post bellum is the reconciliation principle, perhaps the most significant of all post war principles, which has two parts. The first part of the reconciliation principle is: (5a) There is an obligation to treat those against whom war has been waged as deserving equal basic respect, regardless of which side of the war a person is from.

A second principle of reconciliation is this: (5b) There is an obligation to initiate and conduct war in such a way that one does not unduly antagonize the people with whom one will eventually have to reach a peaceful accord.

This principle of reconciliation bridges the divide between jus post bellum and jus in bello in that tactics are limited by how the use of those tactics will affect the likelihood and character of the eventual peace. There are also ways that the principles of jus post bellum create a bridge with the principles of jus ad bellum, especially concerning the principle to rebuild. Finally, there is the sixth normative principle of jus post bellum, the proportionality principle, which is also a bridge principle in that it connects with the proportionality principles of jus ad bellum and jus in bello: (6a) Whatever is required by the application of the other normative principles of jus post bellum must not impose more harm on the population of a party to a war than the harm that is alleviated by the application of these other post war principles.

This is what might be called the domestic jus post bellum proportionality principle. There is also the international variation: (6b) Whatever is required by the application of the other jus post bellum principles must not impose more harm on the peoples of the world than is alleviated by the application of these other post war principles.

It is my view that we should distinguish these two proportionality principles since they have different addressees. Thus we have six principles of jus post bellum. In what follows, each of these principles will have at least a chapter-length treatment where I set out the background of the principle, the argument in favor of it, and some examples of its use. Needless to say, one can carve up the domain of jus post bellum in other ways than what I have offered, but it is my

22

I n t roduc t ion

belief that the principles I have set out capture the sense of the discussion, both historical and contemporary, about justice after war ends. I do not claim my set of principles is the only one, but I do think it makes the most sense of a widely divergent literature, and captures the spirit of much of that debate. So far, no one has proposed a set of principles that has caught the imagination and intuitive support of the thinkers working in this area. Perhaps this set of principles, along with the elaboration and support to be offered later, will achieve something of a consensus where other attempts have not. For a just peace to ensue, these principles must all be met, at least to a certain extent. They represent what Lon Fuller called “desiderata” for an ideal solution to the problem of justice in post-conflict situations. Fuller used this expression to refer to his eight principles by which to judge whether there was a robust rule of law. As he put it, the principles indicate the ways that a legal system can go horribly wrong, but it may be that a system of law can exist as containing a rule of law and yet not fully manifest each of the desiderata.23 This is also the way I regard the six normative principles I have set out. The complete failure to meet these normative jus post bellum principles will mean that the post war effort will go horribly wrong. But it is not necessary fully to satisfy these desiderata in order to have a just and lasting peace. Proportionality has a central role to play in jus post bellum normative principles, just as it does in the jus ad bellum and jus in bello contexts. In fact, satisfying the proportionality principle may be the reason that one of the other principles is not fully satisfied. This is because the proportionality principle urges that we think about the harm that is caused by the post war application of the other normative principles. In this way, the proportionality principle could be written into each of the principles as a modification of them. The principle of proportionality is thus meant to guarantee that the post war efforts really will be for the best, in terms of human rights of the people most directly affected, namely those people in the previously warring parties’ societies, as well as the human rights of the people of the world. As I said, proportionality is a different type of principle, really a meta-principle, than are the other five normative principles. The relationship among the six jus post bellum normative principles is not at all worked out in the literature. I have made a few suggestions above about how these principles reinforce each other, but I have also indicated, but not elaborated, that there is a sense that some of the

  Lon Fuller, The Morality of Law, New Haven, CT: Yale University Press, 1962.

23

Introduction

23

principles can conflict with each other. In the following chapters, I will give more of a sense of how these principles relate to each other. It is my hope that if I can present a relatively clear picture of the principles, then their interrelations will become clearer as well. I will now provide a brief summary of the central arguments of the other chapters of this book. 1.6   s u m m a r y of t h e a rgu m e n t s of t h e r e m a i n i ng c h a p t e r s In the first part, Part i, of what follows, I discuss various theoretical and practical issues concerning the jus post bellum normative principle of retribution. In chapter 2, I begin by discussing a difficult case concerning whether the sitting president of the Sudan should be indicted, arrested, and extradited for his role in the genocide in the Darfur region of the Sudan. I argue that despite the risks of further human rights abuses President Al Bashir should have been indicted, arrested, and extradited. In chapter 3, I follow this case with a discussion of the background from the Just War tradition that can be applied to the transitional justice debates. I provide a defense of normative principles that would allow us to solve problems where justice and peace seem to conflict, as in the case of the indictment of Al Bashir. And in chapter 4, I discuss whether war crimes trials should be held during or after war, arguing that there are good reasons to hold trials in each situation but the underexplored idea of trials during war needs to be considered. In Part ii, I take on the most contentious of the principles of jus post bellum, the principle of reconciliation. In chapter 5, I develop an account of reconciliation that displays its importance and the difficulty of meeting it after war ends. Reconciliation is often not given specificity, which I try to do here. In chapter 6, I further examine reconciliation by giving an account of how it is that the rule of law can be reestablished after war or mass atrocity. I then link reconciliation to the rule of law, giving reconciliation a firmer grounding than it normally is given. And in chapter 7, I discuss conflicts of responsibilities to protect human rights that occur in humanitarian intervention, or what is now called Responsibility to Protect contexts. I argue that when soldiers are forced to go to the rescue of people in other parts of the world, and where the lives of these soldiers are discounted vis-à-vis the lives of civilians, there is a conflict of responsibilities to protect rights that makes post war reconciliation especially difficult to achieve.

24

I n t roduc t ion

In Part iii, I discuss various philosophical puzzles about the jus post bellum principle of rebuilding. In chapter 8, I link the responsibility to rebuild, which is already recognized as a cornerstone of the Responsibility to Protect, with the idea of collective responsibility, both of a State and of the world community. In part, what this means is that the costs of rebuilding do not fall solely on the aggressive party in a war. And in chapter 9, I argue that the responsibility to rebuild is important enough that it can act as a limit on the justice of initiating war. I argue that if it cannot be seen as likely that a State could be rebuilt soon after a war then it may be that the war should not have been initiated in the first place. In this context, I take pains to respond to objections from those who think that especially in cases of self-defense such jus post bellum considerations are inappropriate. In Part iv, I examine the jus post bellum normative principles of restitution and reparations. Both of these principles are forms of restoration that is itself an important form of rectificatory justice. In chapter 10, I develop a general account of restitution in terms of restoration of the status quo ante, and then apply it to the particular context of situations after war ends. There are especially difficult issues in post war contexts that concern the kind of loss that is not easily translatable into monetary terms. In chapter 11, I then investigate the principle of reparations, which concerns the repair of what has been damaged. Here the difficulties of returning to the status quo ante after war ends are especially acute, in light of emotional and other nonphysical damage. Along the way, I build on Grotius’s account of how to deal with plunder in constructing a far-ranging concept of reparations that will guide post war justice. In Part v, I end our discussion by considering the principle of proportionality as well as how jus post bellum principles might support contingent pacifism. In chapter 12, I develop an account of jus post bellum proportionality and relate it to jus ad bellum and jus in bello proportionality. I explain that proportionality makes war especially hard to justify. I explain why it makes sense today to follow the United Nations’ lead and aim at the end of war altogether. Contemplating normative principles after war ends conjures up the idea of the “end of war,” which is ambiguous, and I will exploit the ambiguity of this term throughout this book. The early parts of the book look at normative principles that should govern reconstruction at the end of particular wars or armed conflicts. By the end of the book, I also look at reasons for thinking that war should end as an institution that individual States decide to engage in, even for good or “just” reasons. Indeed,

Introduction

25

an examination of the reason to go to war, in light of how wars should end, will be seen to give reasons to think that war should not be initiated, except in the direst of circumstances. It is in this sense that contemplating how wars should end leads me to think that all war should end. And in this respect, as we will see, we may be able to live up to the richly evocative sentiments expressed in the United Nations Preamble, “to save succeeding generations from the scourge of war … which has brought untold sorrow to mankind.”

pa r t I

Retribution

ch apter 2

Grotius, sovereignty, and the indictment of Al Bashir

In this chapter, I will begin to explore the jus post bellum principles that might help to adjudicate conflicts between justice and peace. I begin by discussing the principle of retribution, and am especially interested in how one can defend post war criminal trials for heads of State that have perpetrated war crimes. The specific question posed in this chapter, whether Sudanese President Al Bashir should be indicted, arrested, and extradited for his role in the Darfur genocide and other atrocities, goes directly to the issue of how best to deal with retribution in light of a case that seems to jeopardize peace. This chapter also begins to discuss how to move toward an international rule of law, where the rules of jus post bellum peacemaking would be of central concern. The case I will consider is especially problematic because it concerns the indictment of a sitting head of State, and displays in an especially graphic way the conflict between pursuing peace and adhering to the jus post bellum principle of retribution. The chapter’s structure is fairly simple. In the first section I will discuss specific ideas both historical and contemporary on jus post bellum as they bear on indictments, arrests, and extraditions of State leaders. In the second section I will discuss the very recent controversy about whether a sitting head of State, Omar Hassan Ahmad Al Bashir, should have had an indictment and arrest warrant issued for him by the International Criminal Court (ICC) for genocide in the Darfur region of the Sudan. In the third section, I consider the position of the ICC in respect to jus post bellum and transitional justice concerns, eventually setting out a normative principle to guide the ICC in future dealings with heads of State. In the fourth section, I consider the problem that results when a State grants amnesty or pardon to a public official accused or convicted of serious human rights abuses. And in the final section I respond to several objections to my views. Throughout the chapter I develop a normative framework for thinking of the institution of arrest and indictment proceedings against sitting heads of State in light of considerations of jus post bellum. 29

30

R e t r i bu t ion 2 .1   mor a l i t y a n d

jus post bellum

pr i nc i pl e s

Recent international criminal trials for genocide seem to be a significant advance in the movement toward a global recognition of human rights and the international rule of law. Yet, such trials are not necessarily an advance in reconciling parties of ethnic wars. It has seemed to certain theorists that criminal trials are able to accomplish only one of two tasks: either to provide retribution and deterrence for the perpetrators or to teach about the truth of the atrocity as a way toward healing.1 In the Sudan, the estimates are that 500,000 people have perished in the Darfur genocide, and over 2 million have become refugees. The newly constituted ICC was given the Darfur case in March of 2005 by the Security Council of the United Nations. Some critics of the ICC argued that the impending trials complicated an already difficult political situation in the Sudan. Even if it is possible to pick out a few of the worst participants in the atrocity, holding trials in which such individuals are convicted and sentenced may not advance other important goals, such as reconciliation, in the aftermath of war. As one reads widely about reconciliation, there is very little consensus about the elements of reconciliation. William Long and Peter Brecke stipulate that reconciliation requires: “public truth telling; justice short of revenge; redefinition of the identities of former belligerents; and calls for a new relationship.”2 Ronald Slye, whose view comes close to my own, argues that for reconciliation there are two necessary conditions: more is needed than mere accountability. “A society is not reconciled with its violent past unless it also works toward the creation of respect for fundamental human rights.”3 I will say much more about this concept in Part ii of the book. Grotius gives us a good beginning when he argues that “after war” we should be guided by a concern for “the preservation of good faith and of peace.” Good faith is what holds States together, and this is also true for Grotius for “the greater society of States.” 4 Good faith involves eschewal of deception and also the “removal of all obscurity” from transactions. 1 See Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice, Princeton University Press, 2000. 2 William J. Long and Peter Brecke, War and Reconciliation, Cambridge, MA: MIT Press, 2003. 3 Ronald Slye, “Amnesty, Truth, and Reconciliation: Reflections on the South African Amnesty Process,” in Rotberg and Thompson (eds.), Truth v. Justice, 2000, pp. 170–1. 4 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925, p. 860.

Grotius and sovereignty

31

Peace is rendered more likely after war insofar as war and its immediate aftermath are “tempered with humanity,” where that includes avoiding “everything else that may arouse anger.”5 The prohibition on arousing anger points to one of the main problems with the use of criminal trials in the aftermath of war or other forms of armed conflict. Trials, especially of leaders, often arouse significant anger among the populace. Grotius generally argued for amnesty for rulers in the aftermath of war. Yet, there seems to be one class of exceptions for Grotius, namely, when a ruler has done harm to his own subjects, or allowed others in the society to cause such harm on the innocent.6 Grotius says very little about such things, but it is not too far removed from Grotius’s general position on the ethics of war to suggest that the prohibition on making sure that one does not arouse anger may also find an exception if a ruler has caused or allowed massive human rights abuses to occur during war, even if the war is a civil war. In light of the above discussion, I propose the following jus post bellum normative principle: There is an obligation to engage in actions to support institutions that promote the international rule of law, as long as such actions do not jeopardize basic human rights.

A similar Just War principle, what I have called the principle of humaneness, applies to how soldiers should treat civilians as well as other soldiers. According to this principle one should exercise restraint when it is likely to produce positive good for other humans as long as one’s own preservation or comparable interests are not jeopardized.7 In support of such principles, Grotius argued that force may be used as long as it does not “take away the rights of others.”8 The general idea behind this Grotian jus post bellum normative principle is that an international system of justice has at least two components: the promotion of human rights – that is, the rights of those who are members of the world community  – and the fairness and nonarbitrariness that comes from the rule by law rather than by the whim of “men.” In moving toward an international system of justice, one of these components should not be sacrificed for the other. We may countenance some loss in one for some gain in the other, but we should prefer solutions that do not diminish either. In jus post bellum situations, care must be 5 Ibid., pp. 861–62.  6  Ibid., p. 816. 7 See Larry May, War Crimes and Just War, NY: Cambridge University Press, 2007, p. 60. 8 Grotius, De Jure Belli ac Pacis, p. 53.

32

R e t r i bu t ion

taken so that criminal trials in the aftermath of war preserve rather than retard the general protection of human rights in the global society. Force may be used to bring leaders to justice for crimes committed during war when basic human rights are not risked and when such trials promote the rule of law. 2 .2  b a s h i r a n d t h e i n t e r n at ion a l l e g a l s y s t e m The situation in the Darfur region of the Sudan is one of the greatest humanitarian crises of our lifetimes. And, at least on the face of it, Sudan’s President Al Bashir has played a large role in perpetrating that crisis. The ICC Prosecutor’s application for an arrest warrant against Al Bashir does not accuse him of personally carrying out any of the crimes but of committing genocide, war crimes, and crimes against humanity “through members of the state apparatus, the army and the Militia/ Janjaweed.” The ICC Prosecutor alleged that he had evidence that “establishes reasonable grounds to believe that Al Bashir intends to destroy a substantial part of the Fur, Masalit, and Zaghawa ethnic groups as such.” The Prosecutor also alleged that “forces and agents controlled by Al Bashir attacked civilians in towns and villages inhabited by the target group, committing killings, rapes, torture, and destroying means of livelihood.”9 The case of Al Bashir is especially problematic given the Grotian principle I have enunciated above. The human rights situation is so perilous at the moment in Darfur that any new instability could result in many more beatings, rapes, and deaths among those who are in refugee camps or otherwise displaced by the civil war that has raged for more than a decade in the Sudan. But if it is Al Bashir himself who will be the one orchestrating more human rights abuses than the abuses he already has on his hands, other considerations enter in as well. Al Bashir’s continuing war against his own people is highly significant and may offset some of the worries about how trying him would exacerbate human rights problems. For capturing and sending Al Bashir to The Hague will anger the population but may nonetheless deter some of the worst violence in the Sudan. In a speech at Nuremberg Germany in 2007, the Chief Prosecutor of the ICC, Luis Moreno-Ocampo said: Situation in Darfur, the Sudan, Summary of the Case, Prosecutor’s Application for Warrant of Arrest under Article 58 against Omar Hassan Ahmad Al Bashir, 14 July 2008. 9

Grotius and sovereignty

33

The issue is no longer whether we agree or disagree with the pursuit of justice in moral or practical terms. It is the law. … It is the lack of enforcement of the court’s decisions which is the real threat to enduring peace.10

Ocampo and others who are working at the ICC conceive of their task to establish a global community based in law. And the main impediment to such a community is the lack of enforcement mechanisms. Without a world executive branch, the enforcement will have to be by means of gapfillers and that is indeed how the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the ICC have been proceeding. Indicting, arresting, and prosecuting Al Bashir could be a significant gap-filler in the international rule of law.11 I am inclined to agree with Ocampo, but he needs to realize that legal justice is not the only form of justice. It is possible that when legal justice is served, the moral and social justice that undergirds human rights can be hampered. In my view, this only happens in the most extreme of situations, but it can happen. So, Ocampo needs a somewhat more nuanced approach, but he does not need to heed all of his critics, many of whom are opposed to all international criminal trials. Indeed, Ocampo needs to proceed ahead to indict and arrest in the vast majority of cases where there is prima facie evidence that a political or military leader has violated the substantive primary rules of international criminal law, especially in those cases of massive human rights abuse. And given the principle of aut dedere aut judicare – the principle that a State must either extradite or prosecute individuals who are accused of violating international law – Ocampo can and should avail himself of the legal resources of other States to seek extradition and then to prosecute Bashir. H. L. A. Hart famously said that international law lacked “compulsory jurisdiction and centrally organized sanctions.”12 Both of these problems can be partially addressed with gap-filling. One strategy is to employ the principle of aut dedere aut judicare. Another strategy is to use diplomacy and other means to bring the leaders of the world who commit atrocities to trial in The Hague for what they have done. Most importantly, international courts should not be deterred from issuing indictments and arrest warrants for fear of political repercussions unless those repercussions are so serious as to risk undermining basic human rights ­protections. What 10 Speech by Luis Moreno-Ocampo, 25 June 2007, Nuremberg. 11 See discussion of this issue in Larry May, Global Justice and Due Process, Cambridge University Press, 2011. 12 H. L. A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, ch. 10.

34

R e t r i bu t ion

should bother prosecutors and judges is whether indicting or arresting political leaders will worsen human rights situations. International criminal law is infirm, both in terms of compulsory jurisdiction and centrally organized sanctions. Ocampo cannot by himself cure this infirmity. He can provide some gap-filling, by working with various States to help him arrest notorious human rights abusers who have violated international law. But he also needs to be careful that in pursuing an indictment and arrest he does not undermine the political capital he has been granted by the United Nations and the ICC’s States parties. For he will need to rely on both entities for gap-filling in the future to cure the infirmity of a lack of organized sanctions as well as lack of compulsory jurisdiction. And Ocampo needs to be especially concerned about furthering rather than retarding the protection of human rights in the global community. 2 .3  i n dic t m e n t a n d a r r e s t i ns t i t u t ions in jus post bel lu m Regardless of what happens at trial, or even whether trials occur, indictment and arrest institutions can play a significant role, both positive and negative, in achieving goals of jus post bellum. Most significantly, indicting and attempting to arrest sitting heads of State is a very graphic reminder of the reach of international law into previously sovereign State affairs. State sovereignty is so immediately challenged by such institutions that, even if the sitting head of State never goes before an international tribunal or is never convicted, a powerful message is sent about the real limitations of sovereign power today. The positive aspect of this message is that even sitting heads of State are not beyond the reach of the international rule of law.13 The negative aspect of this message is that it might undermine the fledgling status of international law by inciting a form of resistance to the forward progress of international law – especially by strong States worried about loss of sovereignty. The worries get stronger when the indictment and arrest of State leaders is justified by reference to the doctrine of the Responsibility to Protect. According to this doctrine, if a State fails to protect, or actively abuses the rights of its citizens, that State loses some of its sovereignty. Here is how the new understanding of sovereignty in international law has recently been described:

  On this topic see May, Global Justice and Due Process.

13

Grotius and sovereignty

35

Sovereignty implies a dual responsibility: externally – to respect the sovereignty of other states, and internally – to respect the dignity and basic rights of all the people within the state.14

The use of international indictments and arrest warrants to bring State leaders to the ICC sitting in The Hague is a particularly graphic reminder of the limitations now being placed on State sovereignty. So far, as long as these institutions are only applied to weak States, strong States will merely worry. But when strong State leaders perceive that the arrest warrants could be issued against them, the ICC will face a moment of truth, perhaps earlier than it is capable of sustaining itself against political pressures. On the positive side, there is quite a bit to like about the use of indictments and arrest warrants against sitting heads of State. What makes international law infirm is the lack of an international rule of law. States and their leaders can act with impunity in violating international law. For international law to become less infirm, and eventually become a robust form of law, sitting heads of State must feel pressure from the threat of sanctions if they disregard international law, especially international human rights law. Surely the first stage is to make sitting heads of State fear that they will be indicted and have arrest warrants issued against them. The very act of issuing indictments is at least a symbolic victory for the rule of law, since it potentially embarrasses a world leader by making public his or her misdeeds and wrongdoings. It might seem that merely having indictments and arrest warrants is not really a sanction, since these things can be easily ignored and will not even have to result in convictions and prison sentences. But this is where the increasing coherence of the international community becomes so important. As long as a sitting head of State remains within the confines of his or her territorial borders, the threat of serious sanction is removed. But as long as other States honor the arrest warrant, then whenever the sitting head of State travels outside the territorial borders he or she does have a reasonable fear of sanctions. Indeed, the threat of arrest and extradition when visiting other countries, especially if it is for needed medical attention, can be a major worry for sitting heads of State who have been indicted by international courts, as former Chilean dictator Augusto Pinochet and others have discovered. In Pinochet’s case the arrest warrant was issued by a Spanish court and his extradition was sought from 14 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Centre, December 2001, p. 8.

36

R e t r i bu t ion

England where Pinochet was recuperating from surgery. In such cases, a very powerful message was sent to other State leaders. The linchpin of the institution of international indictments and arrest warrants is the principle of aut dedere aut judicare. This principle is mainly enforced by multilateral treaties – in fact nearly all international treaties today have clauses that bind States either to enforce the provisions of the treaty or to extradite to States that will do so. This is the doctrine that led British prosecutors to argue that they had little choice but to extradite Pinochet to Spain since they had no intention of prosecuting him in the United Kingdom. Of course, it had to have been at least prima facie plausible to think that Pinochet was indeed a serious human rights abuser when he was a sitting head of State; and British prosecutors would have to recognize the legitimacy of the Spanish prosecutor’s claim to prosecute Pinochet. But that, apparently, was not the problem. Rather the problem was that Chile was ambivalent about having its former head of State prosecuted outside of Chile. Based on this discussion I am confident in thinking that international indictments and arrest warrants are generally good for the international rule of law. So, there are two considerations to concern us: first, the worry expressed in the previous section about destabilizing domestic and even regional peace when sitting heads of State and their supporters are unhappy with the indictment; second, the demonstrably positive effect on the international rule of law of having such indictments and arrest warrants issued. I am led by these considerations to propose the following additional normative principle of retribution in jus post bellum: There is an obligation to extradite heads of State to international courts, if valid international indictments and arrest warrants have been issued for violations of basic human rights, unless there is overwhelming evidence that such extraditions will on balance seriously and adversely impact human rights.

If all States followed this principle, while very specific and seemingly innocuous, there will be a profound positive change in the previously infirm status of international law. This principle is a corollary of the principle I proposed in the first part of this chapter, namely: There is an obligation to engage in actions to support institutions that promote the international rule of law, as long as such actions do not jeopardize basic human rights.

But the principle concerning extradition is different from the broader principle in that it is aimed at one set of specific institutions: international

Grotius and sovereignty

37

courts and tribunals. The duty to support just international institutions is a cornerstone of the obligation of natural justice applied to the international arena. And the specific support of international courts is the key to diminishing impunity as well as giving victims the sense of closure that is so important for other jus post bellum concerns. 2 . 4   a m n e s t i e s a n d pa r d ons Before turning to a consideration of objections to my view, I wish to spend some time discussing what to make of amnesties or pardons in the context of sovereign leaders who have committed atrocities, or had them carried out in their name. As I said above, Grotius generally argues for pardons or amnesties in the case of State leaders who commit major violations of international law. The cornerstone of Grotius’s view is that punishment is generally permitted but that it is a mistake to think of punishment as deserved in the sense that “one who fails to punish him does what he ought not to do.”15 In certain cases, punishment is opposed “not indeed to justice, but to regard for others.” In this respect, we can “refrain from punishment, unless a greater and more just regard for others almost irresistibly restrains us.”16 Grotius ends his brief discussion of pardons by saying: “The lawmaker should not suspend the law except for a worthy reason,” adding that “we cannot define with exactness what are worthy reasons.”17 Grotius holds that one of the best reasons for pardoning arises “from a strong hope entertained for the future.”18 I have followed Grotius above in proposing that arrests and indictments should not occur when it seems likely that seriously greater human rights abuses will ensue for such actions. Indeed, Grotius provides a principle very similar to my own: “Punishment may be mitigated on the ground of regard for others, unless a greater regard for others opposes.”19 And Grotius follows this principle with the gloss that ultimately the weight should be “on the side of humanity.”20 On the international stage, Grotius holds that generally punishment “should be left to the States themselves and their rulers, to be punished or condoned at their discretion.”21 Yet, Grotius allows for a major class of exceptions even though he also generally supports strong State sovereignty. 15 Grotius, De Jure Belli ac Pacis, p. 490. 16 Ibid., p. 491.  17  Ibid., p. 492.  18  Ibid. 19 Ibid., p. 500.  20  Ibid., p. 501.  21  Ibid., p. 526.

38

R e t r i bu t ion

But so comprehensive a right has not been granted to States and their rulers in the case of crimes which in some way affect human society, and which it is the right of other States and their rulers to follow up, just as in each State it is possible for any citizen to initiate a prosecution for certain offenses.22

And Grotius endorses something like aut dedere aut judicare when he says: Since as a matter of fact States are not accustomed to permit other States to cross their borders with an armed force for the purpose of exacting punishment … [a State] ought to do one of two things. When appealed to, it should either punish the guilty party, or it should entrust him to the party making the appeal.23

Here we have the origins of several important principles of international law. But most importantly we find Grotius, the father of international law, advocating discretion and even pardon when dealing with a State’s ruler, out of a regard for future concerns of humanity and respect for people. David Luban, Julie O’Sullivan, and David Stewart have helpfully distinguished three situations involving amnesties that are relevant for our current topic. They ask: Would it matter how the amnesty came about – that is, by decree of the ruling party (for example, Chile’s Pinochet), by a popular vote to grant amnesty to former leaders (for example, as in Uruguay), or as a part of a negotiated transfer of power (for example, as in South Africa)?24

My view is that it does matter how the amnesty came into being. The Pinochet case is as close to an abuse of amnesty as one can get – where the ruling party simply issued a decree pardoning or amnestying others in the ruling party. Here there is a conflict of interest of the sort that is clearly unjust. But in the other two cases, I am not so sure that the amnesty should be condemned. If the populace votes for amnesty or pardon of its rulers, it looks like there is no conflict of interest and it would be anti-democratic to disallow them. And in the last case, there may be little hope for the establishment of peace if the amnesty is not part of the negotiated settlement. Once again, I would add that the likely effects on human rights in the society are still a potentially overriding concern, in all three cases of how amnesty comes into being. But we should recognize that in some recent 22 Ibid., p. 526.  23  Ibid., p. 527. 24 David Luban, Julie O’Sullivan, and David Stewart, International and Transnational Criminal Law, NY: Aspen Publishers, 2010, p. 820.

Grotius and sovereignty

39

cases the international community has pushed States toward accepting amnesties. As Michael Scharf has said: With respect to five of these countries [that granted amnesties]  – Cambodia, El Salvador, Haiti, Sierra Leone, and South Africa – the United Nations itself pushed for, helped negotiate, or endorsed the granting of amnesty as a means of restoring peace and democratic government.25

When the international community endorses the amnesty, and it seems that the overall situation of human rights will improve due to the amnesty, amnesty can be acceptable. As we have seen, there is a sense in which retributive justice must sometimes be sacrificed so that peace can be achieved. But there are other forms of justice as we have seen, not the least of which is “transitional” justice. The securing of peace out of a situation where war has been raging involves a form of justice  – but not retributive or distributive justice. Transitional justice, grounded in meionexia, seems to endorse the idea that if certain conditions are met peace can be secured in a just way, even if retribution is not meted out to the full extent that it otherwise should be. Justice comes in several different kinds and while retribution is always important, it is not always the overriding concern when we are in a post war situation, or a situation that is in transition from war or mass atrocity to peace and security. In the earlier sections of this chapter I discussed two normative principles of retribution in jus post bellum. Retribution is an important jus post bellum normative principle. But retributive justice does not necessarily override transitional justice, which is itself the closest form of justice to the jus post bellum. In many situations retributive justice is not only consistent with transitional justice but retribution forms an important part of transitional justice, by among other things blocking impunity of perpetrators and providing closure for victims. Yet, in some difficult cases, as I have tried to explain, retribution will have to be somewhat sacrificed so that other jus post bellum principles such as reconciliation can be satisfied. Justice and peace are often discussed as opposed to each other. But the debate can be cashed out in terms of justice alone, as we have seen. The justice that is sometimes opposed to peace is retributive justice. But peace itself is not bereft of justice considerations, especially what I have been calling transitional justice. And as we will see there is also what 25 Michael Scharf, “From the Exile Files: An Essay on Trading Justice for Peace,” Washington and Lee Law Review, vol. 63, no. 1, 2006, p. 342.

40

R e t r i bu t ion

could be called reparative justice considerations that generally promote peace as well. So, it is simplistic merely to think of justice as opposed to peace. Throughout the following chapters I will provide an account of these other justice-based considerations The Grotian account of jus post bellum principles of retribution is seen to be limited by a concern for peace especially in the context of situations where amnesties or pardons seem necessary to allow for an end of hostilities. Amnesties and pardons are rather straightforwardly at odds with retributive justice in that they block punishment of those who are guilty of committing mass crimes and atrocities. But on a Grotian account, there are worthy reasons to suspend punishment. It is important to point out that respect for sovereignty is not necessarily one of those worthy reasons, even for someone like Grotius who believed that States play a vital role in the protection of rights. 2 .5  obj e c t ions In this section I will consider several objections to the view I have set out above. First, it could be objected that I have put too much stress on there being international courts when the effect of such courts on either deterrence or retribution is hard to discern at the international level. And in any event, why think that international courts are the best way to instill the international rule of law when it seems more plausible to think that domestic courts operating with aut dedere aut judicare are likely to do a better job of institutionalizing the rule of law internationally. Indeed, it seems that all one is left with is a faith that international courts will one day achieve success that motivates my proposal. Yet a stronger grounding is needed than I have provided. I agree that in some cases domestic tribunals can do a better job of supporting the international rule of law than international courts. I worry that the track record of international courts does not yet offer a good basis for strongly supporting them on deterrence or retributive grounds. But I worry even more that relying on domestic prosecutions for international law violations will lead to vigilante justice. The Pinochet case is a good one to illustrate my worries about domestic prosecutions. In that case one particular prosecutor in Spain, someone who has subsequently been sanctioned for serious misconduct, decided to prosecute the former Chilean head of State. And while it is good that Pinochet’s extensive human rights abuses were eventually subjected to critical international scrutiny, the way this occurred was so haphazard and lacking in oversight as to make any

Grotius and sovereignty

41

criminal defense attorney cringe. International criminal prosecutions are much more likely than domestic ones to guarantee that vigilante justice does not substitute for the international rule of law. Second, it could be argued that it is a mistake to think that there is a natural duty of justice to support just international institutions since until there is a just international State, piecemeal institutions are likely to do more harm than good. To have courts in particular with no legislature or executive branch sets the stage for unaccountable judges punishing world leaders for largely political reasons. The rule of law requires more than courts that issue just verdicts – for it also requires that the laws that these courts interpret and apply are also just. This point seems generally right to me. Courts cannot alone establish a rule of law, domestically or internationally. But the relevant question is whether it is better to have indictments, arrests, and prosecutions by international courts than not to have them. I see no reason to think that having these courts makes things worse, as long as there is some oversight from some international body. At the moment there are several such oversight groups including the ICC’s Assembly of State Parties and the United Nations Security Council. The first, the Assembly, has the official status of representing the ratifying States who signed on to the Rome Statue and so far has been diligent at monitoring the ICC. The second, the Security Council, certainly has the power to keep the ICC honest. It will be interesting to see if the Security Council does exercise this power. Third, it could be argued that I am overly optimistic about what indictments and arrest warrants can do if there is not likely to be enforcement leading to prosecutions. Initially, it might be true that heads of State will be worried when they are indicted, but over time if there are no prosecutions then State leaders will come to see such indictments as one more part of international politics as usual. Indeed, in the case of Al Bashir it is already becoming clear that he has not taken seriously the ICC’s indictment and arrest warrant. And his constituency, a sizeable section of the people of the Sudan, also seems to support him more than they did before the indictment and arrest warrant was issued by the ICC. The result so far of these procedural moves by the court is that violence against ethnic minorities has increased in the Sudan, as these minorities become associated with the court’s actions. This seems to violate the contingent clause that forms part of my proposal. And it seems likely to happen in most cases, meaning that the contingent clause will dominate rather than the main clause, and hence there will not be support from my proposal for the use of international indictments and arrest warrants.

42

R e t r i bu t ion

This objection goes to the heart of my proposals in this chapter. If an indictment and arrest warrant is either ignored or makes things worse in terms of basic human rights, then I am committed by the normative principle I articulated, to oppose such institutions at the international level. And so the criticism is not at odds with the letter of my proposal, but it is in conflict with its spirit. So, I take this challenge very seriously. I am not as worried as the objection suggests only because I believe that incremental changes in the project of international law are not likely to sow the seeds of human rights atrocities despite what is currently happening in the Sudan. I do not want to put too much emphasis on Pinochet-type reactions to arrest warrants, but I do think that there will be some deterrent effect on human rights abusers merely by the issuing of these indictments and arrest warrants. And I do not want to underestimate the nationalist reactions to such institutions. But whenever heads of State are made to think that their human rights abuses are under scrutiny it is likely that things will be made better rather than worse for the state of human rights in the global community. A final objection is that State sovereignty is not likely to disappear any time soon so it is a good idea to live with this dominant idea in politics rather than to try to limit it by proposals such as mine. Rather than threatening sitting heads of State it seems to be a better idea to try to strengthen their hands at curtailing human rights abuses in their countries. Threatening heads of State is not normally the best way to get their cooperation in satisfying the demands of international law. And when stepping into a civil war or serious ethnic conflict in a State, it is also not the best strategy, especially from the perspective of jus post bellum, to alienate the legitimate leaders in a given State. My response to this objection is to deny that it is my purpose to ignore the importance of State sovereignty in the world today. Indeed, I have written quite a bit previously arguing that States can play a very important role in the protection of human rights.26 In particular, I believe that a focus on sovereignty issues is absolutely crucial for achieving jus post bellum reconciliation. The point of my proposals is to set a limit on what sovereign leaders can do to their populations, especially minority populations, within their borders. My aim, as in my other writings on this topic, is to set minimalist standards to govern when a sovereign leader has abdicated the prerogative that is normally afforded to these leaders concerning matters within the sovereign leader’s borders. In general, 26 See Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008.

Grotius and sovereignty

43

minimalism is best in the international arena where law is still relatively infirm. My view is that only when a sovereign leader orchestrates, or willfully permits, massive human rights abuses should he or she fall prey to international criminal prosecutions. Indicting and arresting heads of State sends a powerful message. Positively it stands for the proposition that even powerful leaders cannot attain impunity, but negatively it is an assault on sovereignty. Prosecuting and convicting heads of State is indeed a very powerful way to confront human rights abuse. But because of the worries about sovereignty these devices should be used sparingly. So, I have argued for a position that only seeks these criminal law remedies in extreme cases. For the rest of the time, I am committed to respecting the authority of sovereign leaders, subjecting them to supervision of international courts only in the most extreme cases. I admit though, that the world seems to be moving in the direction of increasing gross human rights abuse that would trigger more prosecution of State leaders than we currently see. Indeed it seems that recently there has been an increase in wars and armed conflict in contravention of the spirit and letter of the United Nations Charter. In this chapter I have used the case of the ICC’s indictment of President Al Bashir of Sudan as a springboard for thinking about sovereignty issues in the context of jus post bellum. Indictments and arrest warrants can and should be issued even for sitting heads of State when those leaders are responsible for mass atrocities within their own borders, but only in those very limited cases where such international action does not create more human rights problems than it solves. Indictment, arrest, and prosecution of State leaders after war ends can be an effective way to bring about retribution and deterrence in the limited context I have set out here. In the next chapters of this section I develop normative principles of jus post bellum concerning retribution in more detail arguing that in some cases justice can be served by compensating victims of human rights abuse rather than holding criminal trials. And I will explain what the advantages are of holding these trials before war ends as opposed to holding them after the war is over.

ch apter 3

Transitional justice and the Just War tradition

Throughout this chapter, I will draw on the Just War tradition, especially the jus post bellum branch of that tradition, for guidance about transitional justice today. Transitional justice concerns situations where a State, or a people, tries to move from a conflict situation to a post-conflict situation. On its face, transitional justice shares much in common with the jus post bellum. Indeed, retribution, reparation, and restitution are all recognized components of transitional justice and also of the jus post bellum. I shall draw on sixteenth-, seventeenth-, and eighteenth-century writings about jus post bellum to help us reach normative principles that will also be applicable to transitional justice. I will continue the efforts in the last chapter to offer an account of some of the most important principles underpinning retributive or deterrent justice during transition – showing that not all strategies that promote peace are worth pursuing, especially when pursuit of peace means that justice will not be had. In this sense, I will defend the strategy of only pursuing a “just peace.” And I will indicate how best to understand justice in transitional settings, especially where atrocities have ravaged a political community. Consideration of transitional justice must inform considerations of how to achieve lasting peace, just as much as considerations of peace must be accompanied by considerations of how to minimize the adverse effect on rights when peace is pursued. As in the previous chapter, I will draw heavily on the work of Hugo Grotius. Grotius said that in the aftermath of war political leaders must be most concerned not to anger the populations of the defeated State since such anger will undermine lasting peace. But Grotius also argued that it was essential that human rights protection must be of paramount concern. We can see in Grotius’s work the emergence of two normative principles of transitional justice: the principle of the promotion of peace and the principle of the protection of human rights. I will explain the normative grounds for supporting these two principles as the cornerstones 44

Transitional justice and the just war tradition

45

of transitional justice. And I will also offer a way to adjudicate between these principles where they conflict. In the first section, I will discuss two sixteenth-century Just War theorists, Francisco Vitoria and Francisco Suarez. In the second section I will discuss the seventeenth-century secular Just War thinker Hugo Grotius and explain the normative grounding for the principles of promoting peace and protecting human rights. In the third section I will discuss the eighteenth-century Just War theorist, Emir de Vattel and explain how best to adjudicate between these principles. In the final section I will respond to several criticisms of my approach. Transitional justice, especially retributive transitional justice, is generally in need of solid normative grounding and the Just War tradition will be shown to be a good beginning source for such an endeavor. I will show that peace should not be thought to be always in tension with justice, but rather that reparation mechanisms can sometimes provide a way to pursue both peace and justice. 3.1  t h e s i x t e e n t h- c e n t u r y i de a s of j u s p o s t b e l l u m Francisco Vitoria, a Dominican theologian and philosopher writing in the middle of the sixteenth century, clearly articulates the three main branches of the Just War tradition in terms of three canons or rules of war, as follows: 1. Assuming that a prince has authority to make war, he should first of all not go seeking occasions and causes of war, but should if possible, live in peace with all men, as St. Paul enjoins us … only under compulsion and reluctantly should he come to the necessity of war. 2. When war for a just cause has broken out, it must not be waged so as to ruin the people against whom it is directed, but only so as to obtain one’s rights and the defense of one’s country and in order that from war peace and security may in time result. 3. When victory has been won and the war is over, the victory should be utilized with Christian humility … whereby the injured State can obtain satisfaction, and this, so far as possible, should involve the offending State in the least degree of calamity and misfortune, the offending State being chastised within lawful limits.1 1 Francisco Vitoria, De Indis et de Jure Belli Reflectiones (Reflections on Indians and on the Laws of War) (1557), trans. John Pawley Bate, ed. Ernest Nys, Washington DC: Carnegie Institution, 1917, Second Reflection, para. 60, p. 187.

46

R e t r i bu t ion

These three rules correspond to the three traditional branches of the Just War tradition: jus ad bellum, jus in bello, and jus post bellum. It is the third of these rules that will concern me, since it is most closely associated with transitional justice. The main jus post bellum principle that Vitoria enunciates is that all actions taken by the victorious party after a war’s end should be aimed at “security for the future”2 and “satisfaction in equity … for the damages and wrong suffered,”3 with the first of these aims having priority. The “Christian humility” is mainly understood in terms of restraints on what is not justified by these two aims. If more is taken than is equitable, it becomes a form of punishment against the innocent which the rules of jus post bellum prohibit.4 What we don’t find in Vitoria is attention to more modern-sounding ideas of the rights of those who have been vanquished, although there is attention to one of the root ideas in his discussion of equity. Francisco Suarez, a Jesuit philosopher writing at the end of the sixteenth century, agreed with most of what Vitoria had written half a century earlier. I mention Suarez merely to cite two little-known facts about his view, which were not much commented on at the time but which have turned out to be very important today. The first fact is that Suarez recognized that wars could justifiably be fought by one State against another if the second State was ruled by a tyrannical prince.5 Overturning tyranny is not often recognized as a just cause for war, although Thomas More, another sixteenth-century Just War theorist also mentions this in his book, Utopia.6 Today, there remains much debate about whether one State can justifiably wage war against another merely because the second State tyrannizes its population. Suarez is prescient in arguing in the affirmative, just as Vitoria had argued that it was not a just cause for war to invade merely to convert the heathens – both took positions which put these priests in opposition to the Vatican positions on these issues at the time. The second fact is that Suarez, unlike most members of the Just War tradition, recognized that it could be just for there to be a “private armed 2 Ibid., para. 46, p. 182.  3  Ibid., para. 51, p. 184. 4 See ibid., para. 59, pp. 186–87. 5 Francisco Suarez, Disputation xiii, De Triplici Virtute Theologica: Charitate, (“On War,” in Selections from Three Works: Charity) (c.1610), trans. Gwladys L. Williams, Ammi Brown, and John Waldron, Oxford: Clarendon Press, 1944, p. 854. 6 Thomas More, Utopia (1516), trans. and ed. George M. Logan and Robert M. Adams, Cambridge University Press, 1989, pp. 89–90.

Transitional justice and the just war tradition

47

contest” “waged by public authority.”7 Suarez somewhat qualifies this conclusion by saying that such a claim is about “war of a limited sort,” perhaps indicating that it is not quite war properly so called.8 He recognized that insurgencies could be justified, but only if they are directed against tyrants and other oppressors.9 Suarez also slightly alters the doctrine of Vitoria by stressing that the victorious and vanquished alike have a duty of “protecting the innocent” which is a requirement of the natural law.10 For Suarez, as for religious as well as secular Just War theorists, natural law was the source of normative principles, and its main basis was a set of moral norms that had universal scope. In some respects this could provide a key piece of support for the Responsibility to Protect, as humanitarian intervention is today described. Vitoria and Suarez do not defend their theses in terms of the rights of victims but in terms of duties toward the innocent. Indeed, Suarez implies that the innocent have no rights against their oppressors.11 The Just War tradition, at least until the middle of the seventeenth century, primarily focused on duties, based on roles, not rights based on universal human status. The duties that were connected to what rulers should do had universal scope but that scope did not generate universal rights on the part of those like the innocent who might be harmed by war. Normatively, one might wonder why it should matter if transitional justice principles are set out in terms of duties of States or rights of individuals. In my view, this issue is of the highest importance. One way to see the difference between duties- and rights-oriented approaches is in procedural terms. Suarez is quite straightforward in saying that individuals simply do not have claims that they can make against their oppressors, even as he also strongly asserts that oppressors act wrongly toward these individuals. As contemporary theorists have pointed out, it is the ability of an individual to hold someone else to account for harms suffered, rather than to rely on the benevolence of others to pursue redress, which is the characteristically important feature of rights-based rather than duty-based language.12 Another significant advantage of rights talk is that it will allow for a somewhat easier resolution of conflicts between peace and justice as we will see. In the next sections we see that Grotius and Vattel do employ the terminology of Suarez, p. 862.  8  Ibid.  9  Ibid., p. 854. 10   Ibid., p. 865.  11  Ibid., p. 862. 12 For an excellent account of the historical development of the idea of rights as distinct from duties, see Richard Tuck, Natural Rights Theories: Their Origin and Development, Cambridge University Press, 1979. 7

48

R e t r i bu t ion

rights in describing the conflict between peace and justice, and hence can perhaps give us significant help with contemporary problems of justice after war or conflict ends. 3.2  g ro t i us on promo t i ng pe ac e a n d pro t e c t i ng r ig h t s Hugo Grotius wrote his great work, On the Law of War and Peace, in 1625. He defends a version of humanitarianism that stresses rights of individuals. At one point, Grotius says: A true and proper obligation arises from a promise and contract of a king, which he has entered into with his subjects, and that this obligation confers a right upon his subjects …13

In another passage, Grotius says that the lives of prisoners are to be spared and initially justifies this claim by reference to the shame that would befall someone who killed prisoners.14 Later in the same chapter he seemingly revises his position and adds that prisoners are to be spared as a matter of “goodness and justice.”15 Grotius thereby changes the terminology, and also the conceptual substance, of the debates about Just War from a discussion of duty and charity to that of justice and rights. Indeed, by contrast, Suarez had placed Just War considerations within a volume he entitled “On Charity.” Grotius argues that “after war” we should be guided by a concern for “the preservation of good faith and of peace.” Good faith is what holds States together, and for Grotius this is also true for “the greater society of States.”16 Good faith involves eschewal of deception and also the “removal of all obscurity” from transactions. Peace is rendered more likely after war insofar as war and its immediate aftermath are “tempered with humanity,” where that includes avoiding “everything else that may arouse anger.”17 As I said in chapter 2, the worry about arousing anger has indeed been one of the main problems with the contemporary use of criminal trials in the aftermath of war. Trials of leaders often arouse significant anger among the populace. Grotius generally argued for amnesty for rulers after war. Yet, there seems to be one class of exceptions for Grotius, namely,

13 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925, p. 384. 14 Ibid., p. 737.  15  Ibid., p. 739. 16 Ibid., p. 860.  17  Ibid., pp. 861–62.

Transitional justice and the just war tradition

49

when a ruler has done harm to his own subjects, or allowed others in the society to cause such harm to the innocent.18 The principle of promoting peace, defended by all Just War theorists and nearly everyone else to write on the topic of war and peace, is relatively easy to articulate. As we will see, the principle of the protection of human rights is harder to articulate, but what is harder yet is to provide a third principle concerning the adjudication of conflicts between the principles of peace and human rights. Let’s begin with the principle of promoting peace. One way to think about promoting peace is to eliminate or minimize war. Grotius famously argues that the law of nature dictates that war must be minimized: Right reason, moreover, and the nature of society, which must be studied in the second place and are of even greater importance, do not prohibit the use of force, but only the use of force that is in conflict with society, that is which attempts to take away the rights of others. For society has in view this object, that through community of resource and effort each individual be safeguarded in the possession of what belongs to him.19

In Grotius’s view, peace, understood in terms of security from outside threat, is necessary for societies to grow and prosper. In most, but not all situations, war disrupts the progress of society. And the grounding for this principle of promoting peace is enlightened self-interest, combined with the natural desire for living in secure societies, shared by all humans. War can be consistent with the progress of society in cases where war is necessary to prevent societies from being attacked. In this case, the standard exception to the principle of promoting peace is defended on grounds of self-defense. But for Grotius, and for most people working in the Just War tradition, these self-defense exceptions were few in number since the proliferation of war has such a destabilizing effect on peace generally that war needs to be greatly minimized. But it can happen that peace is not consistent with the progress of societies either, such as when peace can only be secured at the cost of basic human rights. The principle of protecting human rights is somewhat more difficult to articulate and ground normatively. Part of the problem comes from the fact that a very large number of liberty interests could be characterized in human rights terms. Again looking to Grotius, we find the plausible initial insight that a right is defined in terms of “a moral quality of a 18 Ibid., p. 816. 

19

  Ibid., p. 53.

50

R e t r i bu t ion

person.” Promoting human rights secures what are distinctive qualities of human persons. Grotius then links rights generally to having “power … over oneself.”20 In this way the liberties that are distinctively human can be divided into those that are essential for what today we would call autonomy, and those that are not so related to autonomy. The ability to have power over oneself is also then grounded in the ability to engage in contracts and to own property, things which are necessary for the progress of societies as well. On the Grotian account I have been developing, the normative ground for human rights protection is a form of enlightened self-interest linked with a conception of natural justice. All humans have a strong interest in the progress of societies that occurs when people can enter into contracts and own property. Indeed, this is not only a strong interest of humans but also something that is connected to natural desires of people to live in societies where individual autonomy can express itself, since this is one of the chief moral characteristics of humans. Such natural desires should motivate only if they are not in conflict with more basic desires, and should be morally acceptable only if people had consented to a temporary, not a permanent, suspension of the protection of rights. The two normative principles of promoting peace and protecting human rights can be seen to have similar grounds – namely, the progress of societies that all people seek. And we can begin to see how the principles could at least appear to conflict with one another. There can be a kind of peace that may include serious deprivation of human rights, where human rights are rights of all those who are members of the human community, and thus extend universally.21 Such universality is grounded in the moral duty of equal minimal respect that is owed to all people merely as fellow humans. A peace could claim the name by providing security from external threats, but could fail to protect human rights in that within the society basic freedoms and autonomy are curtailed. Writers in the more recent Just War tradition sometimes refer to this problem as involving a distinction between promoting mere peace versus promoting a “just” peace.22

20 Ibid., p. 35. 21 See Larry May, “How is Humanity Harmed by Genocide,” International Legal Theory, vol. 11, no. 1, Summer 2005, pp. 1–23; and “Humanity and International Crime: Reply to Critics,” Ethics & International Affairs, vol. 20, no. 3, 2006, pp. 373–82. 22 See Pierre Allan and Alexis Keller (eds.), What Is a Just Peace? Oxford University Press, 2006.

Transitional justice and the just war tradition

51

3.3  vat t e l’s s olu t ion t o w h e n t h e pr i nc i pl e s c on f l ic t In his main work on the topic of war and peace, Emir de Vattel gives us a good start at understanding what to do when the above two Grotian principles conflict. Here is how Vattel begins his important discussion of the restoration of peace. He says: “Peace is the reverse of war; it is that desirable state in which every man lives in peaceful enjoyment of his rights.” He then defends the natural law principle: “in every way to seek and to promote peace.”23 But this principle is qualified significantly, especially by considerations of the rights of the individuals who must live with the peace, and Vattel comes very close to embracing the contemporary Just War doctrine that we should only promote a “just” peace. Vattel gives another principle that has bearing on my main theme: “Although the law of nature prescribes fidelity to promises as a means of securing the welfare and peace of Nations, it does not favor oppressors.”24 I will later discuss this principle that oppressors not be favored as one of the central normative principles of the jus post bellum principle of retribution. Constraint must be exercised in how peace is pursued, and what the terms of peace treaties are, so as to make sure that the peace that is achieved is one that allows for the enjoyment of rights of all. But Vattel is no idealist about these matters, arguing that: strict justice should not always be insisted on; peace is so advantageous to Nations that they are so strictly under an obligation to cultivate it, and to procure the return of it when it has been lost by war, that when obstacles, such as those above mentioned, are met with in the execution of a treaty of peace, the parties should lend themselves in good faith to all reasonable expedients, and should accept an equivalent, or a compensation, for the act which cannot be performed, rather than annul a peace treaty and renew the war.25

Vattel thus comes to a compromise position that seems to me to be worthy of defense, something that I shall attempt in the remainder of this section. Vattel’s principle, what I will call the reasonable compensation principle, concerns how to work out restitution and reparations in such a way that peace processes are not scuttled. The causes of war, as well as war 23 Emir de Vattel, Le Droit des gens, ou principes de la loi naturelle (The Law of Nations or the Principles of Natural Law) (1758), trans. Charles G. Fenwick, Washington: Carnegie Institution, 1916, p. 343. 24 Ibid., p. 357.  25  Ibid., pp. 360–1.

52

R e t r i bu t ion

itself, often involve widespread atrocities. The difficulty in achieving a lasting peace is to show respect for those whose rights have been violated but not to insist that compensation be set so high, either monetarily or politically, that peace cannot occur. This is what Vattel means by urging that “strict justice not always be insisted on.”26 And Vattel’s principle is also consistent with the idea of meionexia that calls for compromises and that I have explained earlier. But I think that Vattel needed to clarify this view, so that in extreme cases, such as those of genocide, only a just peace is acceptable, as he seemed to acknowledge on one occasion. Vattel talked of a “restless and unprincipled Nation, ever ready to do harm to others” as the kind of State against which “all the others would have the right to stir up civil strife to unite together to subdue such a nation.”27 Whereas, if the State merely burdens the people “with taxes or treats them with severity it is for the Nation to take action,” not a foreign State. What is crucial is whether the sovereign prince has violated “fundamental laws.”28 It is when a sovereign prince is no better than other so-called “monsters” that the people have a right to rise up against him and to enlist foreigners in their cause.29 Strict justice may be required if the atrocities that were the cause of war, and that have continued, as in the case of Darfur in the first decade of the twenty-first century, show no sign of ending during the peace. Such a position is consistent with Vattel’s claim that peace processes “not favor oppressors.” The reasonable compensation principle is aimed at those who aren’t oppressors, but whose claims may jeopardize the initiation or maintenance of a just peace.30 I believe Vattel is here thinking of leaders whose economic policies have caused many to become displaced persons or refugees. Critics of Vattel’s approach, such as Immanuel Kant, called Grotius and Vattel “sorry comforters” because of their conciliatory and accommodationist positions.31 Kant’s critics called his writing, especially his “Perpetual Peace” essay, idealistic. I will later argue that Kant is wrong in mounting his criticism of Vattel. My view is that Vattel is definitely on the right track. In light of the above discussion, we could construct the following jus post bellum normative principle: 26 Ibid., p. 360.  27  Ibid., p. 130. 28 Ibid., p. 131.  29  See ibid., p. 132. 30 See Allan and Keller (eds.), What is a Just Peace? 31 Immanuel Kant, “Perpetual Peace,” in Perpetual Peace and Other Essays, trans. Ted Humphries, Indianapolis, IN: Hackett Publishing Co., 1983, pp. 116–17.

Transitional justice and the just war tradition

53

There is an obligation to engage in actions to support a “just” peace, where minimally this involves reasonable compensation to individuals for rights violations.

The difficulty is that some rights violations cannot be compensated, such as occurs in atrocities like genocide and crimes against humanity. In those cases, a just peace will require more than compensation, and may even call for continuing war until the genocide or persecution not only ends but is made unlikely to occur again. Yet, as we will see, in such cases it may be too much to expect retribution in any event. But the main point of this version of the Vattelian principle is that some compromises in terms of justice are in order if a just peace can be secured in no other way and the rights violations are not gross ones. In support of such a principle, Grotius argued that force may be used as long as it does not “take away the rights of others.”32 I am adapting the views of Grotius and Vattel so that we distinguish between gross violations of human rights, or violations of basic rights, which will still be protected according to strict standards of retributive justice, and lesser violations of human rights that can be justified in the pursuit of a just peace as long as reasonable compensation is provided. And this is the insight that I think we can take from the Just War tradition and apply to contemporary problems of transitional justice today. The designation of gross human rights violations, as mainly including cases of genocide or crimes against humanity, tracks the wording of the ICC’s Rome Statute on superior orders. According to that international statute, following manifestly illegal orders is not recognized as exculpating but is also not defined. Yet there are two categories mentioned, “genocide or crimes against humanity.”33 In a commentary on this section of the Rome Statute, Andreas Zimmermann has said: “the question to be put is whether an ordinary person in the situation of the accused would have seen that the order was plainly unlawful.”34 This high standard received widespread support even from those who ultimately did not sign, or ratify, the Rome Statute. I draw an analogy between the Rome Statute’s treatment of what is manifestly illegal and when rights violations are so serious as not to be subject to reasonable compensation. The demand for retribution can conflict with the reasonable compensation model I am proposing. Sometimes what it takes to compensate 32 Grotius, De Jure Belli ac Pacis, p. 53. 33 Rome Statute of the International Criminal Court, Art. 33. 34 Andreas Zimmermann, “Superior Orders,” in Antonio Cassesse, Paola Gaeta, and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, 2 vols., Oxford University Press, 2002, vol. i, pp. 970–2.

54

R e t r i bu t ion

someone does not do justice to the wrong inflicted, since perhaps due to good luck a wrong that would normally exact quite severe consequences only exacts minor ones. In general, retribution and compensation do not have the same reach. What I am suggesting is that to achieve just peace it may not be necessary to satisfy all of what retributive justice would call for, as long as compensatory justice can be satisfied. Remember that in chapter 1 I said that these were only desiderata that only needed to be partially satisfied. This still leaves room for rights violations that cannot be compensated and that must still be taken as a serious enough possibility to thwart a peace strategy. When basic human rights violations have occurred, there is no reasonable compensation that would make a difference, and then retribution is back on the table. But even in such cases one of the big questions is whether or not the presence of genocide or crimes against humanity should completely scuttle attempts to reach peace so that the perpetrators can be punished. I am suggesting that this may be true, especially in those cases where it is the leaders of the State that have perpetrated, and are continuing to perpetrate, such atrocities. But it is stopping the ongoing atrocity, rather than retribution for the past atrocity, that drives my intuitions in this case. Only in the most extreme cases, should the demand for retribution be allowed to scuttle peace strategies. And in ascertaining what the extreme cases are, we should be guided by the Grotian concern not to favor oppressors. Are gross or basic human rights violations the only rights violations that cannot be compensated? What about such things as war crimes and deprivations of economic rights? In part the answer is that it depends on how severe these rights violations are. In both cases they could rise to the level of being classified as gross human rights violations. But if not, then attaining and maintaining peace is itself such an important goal that it may, in some circumstances, be more important than avenging lesser human rights violations. Also, especially economic policies are often not instituted out of bad motives and so may not be subject to retributive justice in any event. Indeed, the very idea of avenging loss, even when human rights have been violated, has been one of the most difficult hurdles to overcome in attaining or maintaining peace, especially in parts of the world with long histories of ethnic or racial conflict. To get past recriminations, especially mutual recriminations, avenging may have to be forsworn, although, as I have said, reasonable compensation is normally still necessary for the peace that ensues to merit the label “just,” and hence to count as a form of transitional “justice.”

Transitional justice and the just war tradition

55

Reasonable compensation could take any number of forms, but the point is that it does not always call for violent response or even retributive punishment. The form of compensation that is often mentioned in the Just War tradition can involve community fines rather than criminal punishment. And sometimes this has worked although there has also been serious abuse of community fines, especially in regards to fines imposed by Germany against France and Belgium at the turn of the last century.35 Today, various civil remedies and dispute resolution mechanisms, such as Truth and Reconciliation Commissions, have been gaining acceptability as providing compensation or at least redress for victims of armed conflict. The main point for transitional justice is that such mechanisms should not necessarily be seen as rights-violating, or as a victory for peace over justice, but rather as an appropriate part of a just peace. At the moment, compensation is primarily talked about in international law in terms of victim compensation funds recently established at the ICC. What is unclear is the role these funds will play vis-à-vis the more standard retributive goals of criminal courts like the ICC. I am generally skeptical of mixing retribution with compensation, so I would be happier if the victim compensation fund were not administered by criminal courts. I worry that victims will be thought to be the ones who not only are owed compensation but are owed retribution in criminal proceedings. I have argued elsewhere that criminal justice is quite different from civil remedies – in criminal law it is not the victim but society that should be the focus.36 Compensatory and retributive justice concerns can of course both be talked about under the rubric of justice, but should probably not be addressed by the same institution. In the previous sections I have drawn on the Just War tradition to explain how to deal with the conflict between the goals of ending war and protecting human rights. In many, if not most, situations the two goals of the promotion of peace and the protection of rights are not opposed to each other. Indeed, one can sometimes bring the discussion of both goals under the single rubric of protection of rights if peace is seen as protection of the security interests of individuals. When peace is understood in terms of significant interests, it is only a short step to being able to find 35 See James Gardner, “Community Fines and Collective Responsibility,” American Journal of International Law, vol. 11, no. 3, 1917, pp. 511–37. On the more general topic see Larry May and Stacey Hoffman (eds.), Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics, Lanham, MD: Rowman and Littlefield Publishers, 1991. 36 See Larry May, Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005, ch. 12, “Victims and Convictions.”

56

R e t r i bu t ion

common ground for comparing peace with human rights which also can best be understood in terms of significant interests, as I suggested above.37 There are a fair number of cases, though, where these two goals conflict. I have offered the beginning of a normative framework for how to deal with such cases. 3. 4  obj e c t ions In this section let me begin by responding more directly to Kant’s criticism of Vattel and Grotius that they were “sorry comforters.” Kant was specifically objecting to their focus on “treaties of peace” rather than a “league of peace,” where the focus on a league is a cosmopolitan goal to end all wars rather than a goal just to restrict the scope of specific wars. In particular, Kant objected to the very idea that a State could have an independent right to go to war, for such a right would assume that an individual State could determine what is universally appropriate. Either the State has such freedom to wage war as it sees fit, or it is subject to considerations of right that must be independent of that State, such as would come from the assessment by a league of states. Grotius and Vattel, on Kant’s account, provide a kind of illicit cover for States that would be said to have rights to go to war, or to continue wars, when it should have been clear that both rights and war could not be made to fit together. For Kant, thinking that there is a right to go to war, leaders of States may be made to feel more comfortable but this is “sorry” or “cold comfort.”38 For our debates about transitional justice, Kant’s point can be put in the following terms: to speak of justice among nations without there being a true federation to decide and enforce international norms is merely to engage in bad faith for both States and individuals. In Kant’s view, there is no question of right at the international level unless there is a world federation or State. Attempts to regulate the actions of States by reference to normative considerations of right are doomed to fail on this account since they will only give the appearance of right to what is merely might. True peace, for Kant, only comes through world federation. And those who speak of normative regulation of international affairs outside of such a federation are mere comforters of the rulers of these States. Kant, though, stopped short of calling for a full-blown world State. 37 See Larry May, Global Justice and Due Process, Cambridge University Press, 2011, ch. 12, “Global Procedural Rights and Security.” 38 Immanuel Kant, “Perpetual Peace,” pp. 116–17.

Transitional justice and the just war tradition

57

Martti Koskenniemi, the contemporary Finnish legal theorist, has brought a related charge against those in the international law movement. Koskenniemi has long argued that international legal institutions simply reinforce the hegemonic tendencies of the most powerful States. He writes critically of the international law movement for suggesting that, “without renouncing their autonomy,” States could come to cooperate and to follow “common principles.” Koskenniemi calls international law, “the gentle civilizer of nations.”39 This phrase is meant both to criticize the self-proclaimed importance of those in international law who have claimed to follow normative principles and also to indicate that the actual goals accomplished are quite modest at best, and at worst increase the stratification between rich and poor States in the global economy. I would agree that international law defenders should be more modest in what they say about the status of international law today. Sovereign States still hold sway in most situations, and that indeed is how it should be for a while since most States normally do act as good protectors of the human rights of their citizens and subjects. Nonetheless, I do not see a pattern of hegemonic control that is intensified by international law even as I agree with Kant and Koskenniemi that international law, and transitional justice in particular, is State-centered. Yet, it does sometimes happen that sovereign States can be forced to stop oppressing their people by a coalition of right-minded States. And as long as such interventions are kept to those cases where there have been the most extreme of human rights abuses, as in cases of genocide and crimes against humanity, it doesn’t take a world State to judge that such intervention is morally justifiable – although, as I will argue in chapter 7, there may be a conflict of responsibilities to protect rights between the rights of those who are oppressed and the rights of those soldiers commanded to go to the rescue of the oppressed. Normative discussions in the international context, especially about questions of right and norms in the aftermath of war, may be odd but they have been with us since the beginning of recorded history.40 And nowhere is this discussion of more importance than in the attempt to set out principles for the restraint of States or governments from being oppressors or, as Vattel so aptly put it, “restless and unprincipled Nations.” Normative principles of jus post bellum are, to be sure, only guides to 39 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960, Cambridge University Press, 2001, especially p. 13. 40 See Stephen C. Neff, War and the Law of Nations: A General History, Cambridge University Press, 2005.

58

R e t r i bu t ion

conduct, certainly not proper rules or laws. But as guides they can be important for indicating where there is at least a rough consensus, especially in light of how long such principles have been accepted. The second objection I want to consider is that I have not given much guidance to those who work on transitional justice problems since these problems are all at the extremes  – where genocide or crimes against humanity have occurred.41 My proposed solution to the problem of conflicts is not going to do much work in the transitional justice context since nearly all of the cases fit into the one class of exceptions I allowed. And so the pragmatic solution I offered really isn’t much good for the bulk of transitional justice cases where there has been a genocide or crime against humanity. Transitional justice does not generally concern lesser but only gross human rights violations, and hence retribution should always be on the table even when it jeopardizes peace.42 In my view, transitional justice concerns all situations where a State, or a people, tries to move from a conflict situation to a post-conflict situation. And conflict situations should be viewed broadly enough to include civil wars and mass commission of war crimes, as well as situations of genocide or crimes against humanity. So, the second objection is not quite an accurate account of transitional justice contexts. Civil war settings are different from mass atrocity settings  – but both can concern transitional justice. And when civil war has produced war crimes, even mass war crimes, it seems to me that the Grotian-Vattelian compromise is still on the table. In addition, while many situations of transitional justice have involved crimes against humanity, there have in the same situations also been lesser crimes committed for which it may still be appropriate to offer civil remedies such as compensation rather than retribution to the victims. Indeed, I would predict that all transitional justice cases will involve both gross and lesser violations of human rights. And in those cases my compromise asks us to contemplate not using retributive justice to deal with the lesser cases if it is true that peace would become harder by meting out retribution for such lesser crimes The ICC does not recognize war crimes as being manifestly illegal in the sense that orders to commit them must never be obeyed. I would add that it will matter how grave are the war crimes. Failure to provide prisoners of war with adequate accommodations is a war crime, but it should   I thank Max Pensky for discussion of this point.   I thank Max Pensky for pressing me on this point.

41

42

Transitional justice and the just war tradition

59

not automatically trigger the duty to have retribution. Failure to rescue sailors whose ship has sunk is also a war crime, but one that is much graver, because it inevitably leads to loss of life, than is failure to provide adequate accommodations to prisoners of war. We should follow the lead of the ICC in how we view retribution in situations of transitional justice. A third objection is that reasonable compensation is not a proper substitute for retribution. Retribution is about providing the society with a redress for the harm that has occurred to one of its members. When compensation is paid to the individual, the society is not necessarily made whole. Indeed, accepting reasonable compensation as a substitute for criminal prosecution of the perpetrator is on the road to privatizing the criminal justice system. Criminal justice should not be about compensation for the victim but about making amends for the harm to the society that the perpetrator has caused. Retribution is properly for the society, not the victim, and even reasonable compensation for the victim does not substitute for retribution. My response is to agree with the spirit of this objection since I have also argued strongly that the victim is not the proper subject of retribution in criminal justice.43 It is the society to which amends must be made. But there are various ways of making amends to society that do not involve making the perpetrator suffer punishment or some other penalty. The society can most obviously be benefitted when a just peace is brought into being. So, while prosecutions are normally the best way to make amends to a society when a criminal act has occurred, the society can achieve this result in other ways as well. But mere reasonable compensation to victims does not make amends to the society. So in this respect I agree with the criticism. My claim is not that reasonable compensation replaces prosecution and punishment for the society, but that the gain in the likelihood that a just peace can be secured will have this effect. In my view, while the status of the individual victim is diminished in criminal justice it is not eliminated. And for this reason the reasonable compensation to the victim has some benefit. And it is important that victims feel that they are not being ignored by their societies when these individuals have been victimized, especially if the victimization is e­ gregious as in the case of genocide or crimes against humanity. And it is for this reason that the victims should be entitled to complain if there are not prosecutions and punishments of the perpetrators for their

43

  See May, Crimes against Humanity: A Normative Account.

60

R e t r i bu t ion

harms. But when the victims receive reasonable compensation then they are no longer entitled to complain if their society decides not to prosecute. Victims are at very least entitled to an explanation when their cases are not handled in the normal way by the criminal justice system. And if the explanation is not reasonable, victims are entitled to complain and demand that prosecutions go forward. But in my view, prosecutions are not primarily focused on the harm that was done to the victims rather than the harm to the society. And ultimately it is the society at large, through its criminal justice institutions, which should decide whether to proceed with a given prosecution. The victims need to be compensated in a reasonable manner if they will not get closure to their injuries in the normal way. And so, when a just peace can only be achieved by not conducting a trial or by not punishing the perpetrator, this can be justified as long as the victims get reasonable compensation. Throughout this chapter, I have sought to show that principles such as that of reasonable compensation should be widely accepted given the weight of reasons. In addition, the normative jus post bellum principle of retribution must be given an important place in post war justice considerations, especially concerning those States and their leaders that act in “reckless and unprincipled” ways. In so arguing, I have proceeded in a way that attempts to give due considerations to the legitimate role of States in the protection of human rights, something that has been a cornerstone of recent work in the Just War tradition. States should be recognized as important protectors of human rights, but when States act contrary to the human rights of their citizens, or the citizens of other States, post war transitional justice calls for leaders to be held accountable, as long as doing so does not seriously and adversely impact human rights. Transitional justice is intimately involved with normative considerations in the aftermath of war. The principles I have drawn from the Just War tradition are applicable both to international and to domestic conflict, insofar as ultimately there is some impartial entity that will judge in terms of justice in the attempts to provide a just peace after war’s end. In this chapter, I have added additional reasons to support two broad principles (promotion of peace and protection of rights) governing transitional justice that have already been well-discussed in historical and contemporary literature. My own modest contribution, proposing an adjudicatory reasonable compensation principle, has resulted from adapting positions articulated several centuries ago so as to indicate how there might be resolution of obvious cases of conflict between these two principles and

Transitional justice and the just war tradition

61

so that transitional justice can have a firm normative ground. The Just War tradition can be successfully mined for significant aid in normatively grounding the important work of transitional justice. In the previous chapter, I argued that retribution through criminal trials should be held unless the basic human rights situation would be made worse, and as long as the worsening of human rights would not be due to the actions of the State leader who is to be indicted, arrested, and prosecuted. In the current chapter, I argued that retribution through criminal trials should not take place when compensation can substitute for it, primarily where there were not gross violations of human rights. But the upshot of both chapters is that criminal trials can proceed in many cases when State leaders have harmed their own citizens or the citizens of another State. In the next chapter we explore whether such trials should best take place after war or conflict is over, or while war or mass conflict is still occurring.

ch apter 4

War crimes trials during and after war

War and law sit in a tense relationship, often not well-recognized by theorists writing in the Just War tradition. Grotius says that wars “must be carried on with not less scrupulousness than judicial processes.”1 But the kind of scrupulousness needed for successful waging of war is quite different from the kind of scrupulousness needed for the successful pursuit of justice during trials. Achieving victory on the battlefield often requires having very high morale among troops, for instance, and yet achieving victory in a trial does not turn on such morale, and indeed can be achieved by playing off the low morale of troops who are convinced that they will be the next to be prosecuted if they do not cooperate and testify against their comrades. It has seemed to some theorists over the centuries that war was either already criminal, or war involved suspending criminal rules. In both cases, the idea of guilt, traditionally the focal point of trials, was simply not appropriate during war. In addition, soldiers did not act on their own but on the command of others, and so their acts seemed to lack the intent necessary for criminal guilt. But the idea of war crimes is nearly as old as history itself. The oldest of codes place some limits on how war can legitimately be conducted, and the idea of prosecuting individuals who violate those rules of war can be seen at least as early as ancient Greece. In fact, arguably the first recorded criminal trial, the trial of Orestes for killing his mother, is tied up with the idea of whether Orestes’s father, who was killed by his mother, acted appropriately during war in sacrificing his daughter to gain victory.2 Law is brought into tension with war in the very idea of war crimes trials. Most such trials occur after the war has ended, and here it is 1 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925, p. 18. 2 See Aeschylus’s play, Eumenides, ed. and trans. Alan H. Sommerstein, Loeb Classical Library, Cambridge, MA: Harvard University Press, 2008.

62

War crimes trials during and after war

63

difficult to reproduce the sense of battle as well as even the issues that propelled the antagonists during war. It is as if law must wait until war is over to be able to achieve objectivity. But in this chapter I ask not just about such trials but also about criminal trials for war crimes held while war still rages. In this respect, I will begin with Grotius who forthrightly investigated these issues in the seventeenth century. For it is Grotius who not only discusses war but also war crimes in a way that aids in understanding how war and crimes are related. In this chapter I will consider the justifiability of retribution through war crimes trials, with special attention to the question of whether such trials should be held during wartime or after war ends. Contrary to most of the extensive literature on this topic, I will distinguish between trials conducted during war and trials conducted in the aftermath of war. In the first section, I will begin by looking back to the Just War tradition for guidance about how to view war crimes ­trials. In the second section, I defend the use of criminal trials for crimes committed during war, with special attention to the problems that result when principles of law are mixed with the realities of war. In the third section, I will examine a US case that was prosecuted during the Vietnam War, Calley v. Calloway, as well as several more recent cases from Iraq and Afghanistan. In the fourth section, I examine the arguments for holding war crimes trials during wartime and I also examine arguments for holding war crimes trials after war ends. I look at how the principle of retribution should be seen in light of other jus post bellum principles. And in the final section I consider several objections to the views I have set out.

4 .1  t h e j us t wa r t r a di t ion States do not often seek legal permission before going to war. Yet, law will often play a significant role at the end, and sometimes even during, a war, especially in the institution of war crimes trials. In this sense, war is often perceived through the lens of law, as was most notably true of the Nuremberg trials of the late 1940s that performed this function for the Second World War. Some have said that the My Lai trial, held in the late 1960s, played a similar role in respect to the Vietnam War. The relationship between law and war has been discussed for a very long time. I begin with the writings of Hugo Grotius early in the 1600s.

64

R e t r i bu t ion

In 1625, Grotius spoke of a “great society of States” that is governed by the “law of nations.”3 The “common law among nations” is “valid alike for war as in war.”4 When the laws of nations, which include the laws of war, are broken, “a remedy must be found [so] that men may not believe that nothing is allowable, or that everything is.”5 Grotius also maintained that “in order that wars may be justified, they must be carried on with not less scrupulousness than judicial processes are wont to be.”6 In this respect, Grotius talks of the possibility that States, like individuals, would “league themselves together to establish tribunals.”7 And he follows this remark by pointing out that “law fails of its outward effect unless it has a sanction behind it,” even as he also allows that law without sanction “is not entirely void of effect.”8 Thus Grotius anticipates international war crimes tribunals that would seek to punish individuals and perhaps also States that violate the rules of war, as established by the law of nations. Grotius maintains that the law of nations is generally the source of the laws of war. But there are two crucial parts of the laws of war that are instead grounded in the law of nature, universal moral norms, not merely the law of nations. First, Grotius points out that the law of nations is largely based on agreements and pacts of States. And there is need of an obligation to obey pacts. The solution to this problem is that “it is a rule of nature to abide by pacts.”9 Second, for Grotius, some of the rules of war are grounded in “certain fundamental conceptions which are beyond question”10 – namely, principles of natural justice, such as that one should not seize “that which belongs to another.”11 In Book i, chapter 2 of De Jure Belli ac Pacis, Grotius says that at certain times goodness is a narrow consideration. Think of it, he says, as “a point, so to speak, so that if you depart from it even the least possible distance, you turn aside in the direction of wrongdoing.”12 To perform an act without injustice is the key to living a good life. But what might otherwise be thought to be without injustice can change with only seemingly minor changes in certain circumstances. Because Grotius holds the general view that “the good of the innocent person should receive consideration before the good of the guilty,”13 it will matter whether the one who is waging war is innocent or guilty, and in part this will be determined in light of whether the “legal formalities” of the rules of war have been followed. Grotius thus also anticipates the debate 3 Grotius, De Jure Belli ac Pacis, p. 15.   4  Ibid., p. 20.  5  Ibid.  6  Ibid., p. 18. 7 Ibid., p. 16.  8  Ibid.  9  Ibid., p. 14.   10  Ibid., p. 23.  11  Ibid., p. 25.  12   Ibid., p. 52.   13  Ibid., p. 75.

War crimes trials during and after war

65

about whether a State’s aggressor status taints all other acts that are taken during and after war. For Grotius, what is crucial is whether or not a given act will “take away the rights of others.”14 Even the use of force that brings about the death of fellow humans can be “good” if that act does not take away the rights of those who are killed, since the “use of force which does not violate the rights of others is not unjust.”15 In particular, Grotius holds that “it is not unfair that each suffer the full extent of the evil he has committed.”16 Thus for Grotius it will matter whether one fights in a just or unjust war in terms of what can justifiably be done to that person during war, especially concerning which tactics during war are justifiable and which are not. In an important, although somewhat elusive passage, Grotius sets the stage for the idea of war crimes trials when he says: Now then once it is proved that the inflicting of capital punishment could be lawfully retained after the coming of Christ, it is, I think, proved at the same time that in some cases war is lawfully waged, as, for example, against criminals gathered in a great number, and armed, who must be conquered in order that they may be brought to trial.17

The waging of war, and the killing of people that war necessarily involves, is sometimes justified because of the crimes of those against whom one fights this war, insofar as waging war is the only way to bring these criminals to trial. While Grotius here seems concerned with crimes committed before the war started, it is an obvious extension of his doctrine to think also of crimes committed during early stages of a war. In war various legal “formalities must be observed.”18 And when they are not observed then the individual in question has committed a war crime. In addition, Grotius argues that illegal orders to go to war, or to use illegal tactics in war, should not be obeyed. He says: “if the authorities issue any order that is contrary to the laws of nature or to the commandments of God, the order should not be carried out.”19 Indeed, it would be wrong to carry out the order, and in the case of the order to go to war, subsequent acts committed during war, which are based on the wrongful act of obeying the order to go to war, would also be wrong, despite the fact that these acts would otherwise be right. Grotius does not explicitly draw this inference, but it 14 Ibid., p. 53.  17 Ibid., p. 69. 

  Ibid., p. 54.    Ibid., p. 97. 

15

18

16

  Ibid., p. 58.   Ibid., p. 138.

19

66

R e t r i bu t ion

certainly seems consistent with the general line of argument of De Jure Belli ac Pacis. When in Book iii Grotius sets out the “rules regarding what is permissible in war,” he says that violating the rules of war can make one guilty and can change one’s status concerning subsequent acts during war. Here is a crucial passage: the fact must be recognized that our right to wage war is to be regarded as arising not merely from the origin of the war but also from the causes which subsequently develop. Just as in law suits a new right is often acquired by one party after suit has been brought. Thus those who associate themselves with him who assails me, either as allies or subjects, confer upon me the right to protect myself against them as well. In like manner those who join in a war that is unjust, especially if they can or ought to know that it is unjust, obligate themselves to make good the expenses and losses incurred, because through the guilt they cause the loss.20

Notice here that Grotius links both jus ad bellum and jus in bello considerations with those of jus post bellum. If a soldier participates in what is known, or should have been known, to be an unjust war, or engages in unjust tactics during war, that soldier incurs obligations after war ends to “make good expenses and losses incurred.” In the category of causes that arise subsequently to the onset of war are those having to do with the commission of war crimes, what Grotius calls violations of the rules of war. And yet Grotius is aware that such considerations as those described above can be abused. On the next page, he says: But, as we have admonished upon many occasions previously, what accords with a strict interpretation of right is not always, or in all respects, permitted. Often, in fact, love for our neighbor prevents us from pressing our right to the utmost limit.21

So, Grotius urges that humanitarian concerns should motivate us not to punish severely those who have engaged in guilty acts. Rather, or so it seems, post war reconciliation and reparations are more appropriate than is punishment. Having established that it is unjust to wage war, or to participate in war, if that war is unjust, and that, as a matter of justice, people can then be punished for such injustices, Grotius also sometimes takes away “the privilege” of doing so. For, in some cases “a sense of honor may be said to forbid what the law permits.”22 He reminds us “that if the cause 20 Ibid., p. 600. 

21

  Ibid., p. 601. 

22

  Ibid., p. 716.

War crimes trials during and after war

67

of a war should be unjust, even if the war should have been undertaken in a lawful way, all acts which arise therefrom are unjust from the point of view of moral injustice.”23 But just a few pages later, Grotius says that “from humanitarian instincts, or on other worthy grounds, he will either completely pardon, or free from the penalty of death, those who have deserved such punishment.”24 And yet, as indicated above, Grotius does not rule out the prosecution of those who are guilty of crimes during war, as is also true in contemporary debates. He merely indicates that we should be motivated as much by humanitarian considerations as those of strict justice when dealing with those who have committed war crimes, especially “when anyone has done wrong not from hatred or cruelty, but moved by a sense of duty and righteous zeal.”25 This position in favor of humanitarian leniency for those who fight in unjust wars from good motives also anticipates what we will find in discussions of war crimes prosecutions in contemporary debates. But the general idea that war crimes trials, both for jus in bello as well as jus ad bellum violations, should occur early enough in war so that soldiers know what is expected of them is clearly something that Grotius provides support for. 4 .2  a de f e ns e of wa r c r i m e s t r i a l s A Grotian defense of war crimes trials would be drawn in terms of several factors. First, trials are generally justified so that wrongdoers do not have the sense that they can act with impunity. This obviously deals with both specific and general deterrence. But more importantly for a Grotian account, retribution must be had to set the scales of justice aright. War intersects with law so that a moral objective can be achieved. Of course, in a sense, law alone cannot achieve a moral objective. Here is one of the links between law and war. Some kind of collective moral response is called for as a result of the injustice of initiating an aggressive as opposed to a defensive war, or the injustice of employing tactics or weapons during war that cause unnecessary suffering. In addition, as I shall argue later, a moral response is called for at the end of war that justifies the imposition of law upon war. In the Grotian account, war crimes trials are justified on moral grounds as a way to limit and ultimately provide a justificatory frame for how to think about the possibility of Just War. 23 Ibid., pp. 718–19. 

24

  Ibid., p. 733. 

25

  Ibid., p. 730.

68

R e t r i bu t ion

The reason that morality alone, through its sanctions of blame, taint, and shame, cannot regulate war sufficiently without law is that war can never be effectively regulated and appropriately restrained except through institutions of collective liability. War is not a matter of individual isolated action. And war cannot be constrained by sanctions that are merely aimed at individual actors either. War involves the coordinated acts of many individuals and properly to restrain war will require institutions that aim at collective liability. A Grotian defense of war crimes trials sets the institution of criminal trials as the legal institution that embodies the collective liability for wars wrongly initiated, wrongly conducted, or wrongly concluded. Contemporary debates in both philosophy and law have highlighted the importance of this Grotian insight. After providing several more layers of support for war crimes trials I will then turn to the question of whether such trials are better conducted during rather than at the end of war or armed conflict. There are at least four goals of war crimes trials, two of which bear directly on jus post bellum principles. The first two goals are the traditional goals of retribution and deterrence for which all trials aim whether or not they concern war crimes. The second set of goals is nontraditional but important for securing a just and lasting peace: the goal during war of deterring soldiers from participating in atrocities or other acts of violence against civilians; and the goal, after war ends of aiding in reconciliation by showing that even the victors will take responsibility for wrongs committed during even a just war. In this section I will say something relatively brief about each of these goals. Before doing so, let me say a bit about the problem of mixing principles of legality with the realities of war. As indicated earlier, Grotius thought that war and lawsuits shared in common the idea that they should be pursued scrupulously. But war and law sit uneasily with each other when they are combined in the idea of a war crime. One of the problems is that many of the normal constraints that we all have during peacetime are cast off during war, most significantly the constraint against intentionally killing or harming. Yet, this statement is only partially true  – soldiers can kill or wound each other, in certain circumstances, but the prohibition on killing or wounding civilians remains largely in place. Even so, it is often thought that holding soldiers responsible for killing civilians when such casualties are referred to as collateral damage by the politicians who send soldiers into battle presents conceptual and normative problems that are difficult to overcome.

War crimes trials during and after war

69

The idea of committing crimes during war, when war already involves arguably the worst of crimes – intentionally killing human beings (who happen to be enemy soldiers) – strikes many people as at least odd. And given that soldiers are trained to inflict maximal damage on the enemy, to then say that the soldier has committed a crime, by doing just what the soldier was trained to do, seems unfair, especially if the soldier was following orders of a superior officer. Indeed, there is a very old tradition of saying that, where there is war, considerations of justice and law are out of place. Such an idea is still widely adhered to especially by political leaders. Yet, critics of the idea are now gaining ground and international law is coming increasingly to embrace human rights theory instead of older notions of how to understand the relationship between war and law. It seems to me that, even on a traditional model, soldiers should be held accountable for their crimes. The defense of the concept of war crimes is undergirded by the idea that soldiers should not see themselves as hired killers, but as professionals. And the best way to instill the sense of being a professional is that soldiers must conform to a code of honor. At least initially, one can understand the concept of war crimes as constituting a violation of a soldier’s code of honor. This code of honor is a moral code, but over the years there has been an attempt legally to codify the moral code. With this legal codification has come a series of penalties for violating the code, including criminal sanctions for the most serious violations of the code.26 There has been a difficulty in extending to soldiers the idea of committing a war crime, since most soldiers are only following superior orders. Various legal attempts have been made to try to indicate that certain orders are simply not legitimate and should not be obeyed by soldiers, lest they run afoul of the mandates of the soldier’s code and bring upon themselves criminal liability. Soldiers are held liable for harms they cause in the case of orders that the soldiers should have known were illegitimate. But soldiers are not considered criminally liable for participating in unjust wars of aggression. Only those who planned or led the wars of aggression are currently held liable for the war crime of aggression. And soldiers are still not generally held liable for employing illegal tactics if they were ordered to do so, unless the orders were manifestly unjust. With the shift to a human rights framework, where individuals are held accountable for violating the rights of others, the door has been opened to the idea of holding soldiers responsible for their actions, not just for murdering civilians but also for participating in unjust acts of

  See Larry May, War Crimes and Just War, NY: Cambridge University Press, 2007.

26

70

R e t r i bu t ion

aggression against States or peoples. Leaving aggression aside, the human rights framework allows for another and perhaps stronger basis for holding soldiers responsible for attacks on civilians. Here, the idea is not just that soldiers are honor-bound to protect rather than attack civilians, but that soldiers have duties to civilians as fellow humans in just the same way that these soldiers, when out of uniform, would have duties to other people, simply because they were fellow humans. And yet there is a serious problem that now arises, namely, why should enemy soldiers not also count as fellow humans who are also deserving of protection rather than attack. In many ways the human rights rationale outruns even the most radical proposals for how to criminalize the acts of soldiers. For the human rights rationale would potentially support the accusation of violations of the morality of war for what were previously viewed as normal acts of war, namely the killing of one soldier by another soldier. If this position can be made plausible, then we would have to take seriously various forms of pacifism that have argued that normal acts of war are immoral, or at least so morally risky that soldiers should be counseled not to fight. And this would make pacifism a more serious challenger to the Just War tradition than is normally recognized.27 But criminal liability needs more than the above-stated human rights rationale. There is the matter of intentions to deal with: soldiers do not typically attack enemy soldiers so as to take away their rights, but so as to achieve certain military objectives thought to be necessary to win what is perceived to be a just war. To be fair to soldiers who are often just trying to do their patriotic duty, only some of their acts should be prosecuted as criminal acts. As we next see, there may be some clear cases where soldiers have acted contrary to their duty and placed civilians into harm’s way in attacking them as if they were enemy soldiers. When such cases occur, then both the traditional framework of honor and the contemporary framework of human rights come together to counsel that prosecutions of individual soldiers for war crimes should take place. Yet even in seemingly clear cases, problems arise nonetheless. 4 .3  t h e m y l a i pro s e c u t ion a n d mor e r e c e n t t r i a l s There have been several high-profile domestic criminal trials for war crimes held during rather than after war, most significantly the trial of 27 See Larry May, “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, vol. 25, no. 2, Summer 2011, pp. 95–111.

War crimes trials during and after war

71

US Lieutenant William L. Calley, Jr., the main defendant charged in the My Lai massacre during the Vietnam War. Calley was charged on September 5, 1969 with premeditated murder for killing “not less than 102 Vietnamese civilians” in a hamlet in South Vietnam. Here is how the US Court of Appeals described the facts: Lieutenant Calley was the 1st platoon leader of C Company, 1st Battalion, 20th Infantry, 11th Light Infantry Brigade, and had been stationed in Vietnam since December of 1967. Prior to March 16, 1968, his unit had received little combat experience. On March 15, members of the unit were briefed that they were to engage the enemy in an offensive action in the area of My Lai. The troops were informed that the area had long been controlled by the Viet Cong and that they could expect heavy resistance from a Viet Cong battalion which might outnumber them by more than two to one. The objective of the battalion was to seize the hamlet and destroy all that could be useful to the enemy. The attack began early in the morning of March 16. Calley’s platoon was landed on the outskirts of My Lai after about five minutes of artillery and gunship fire. The assault met no resistance or hostile fire. After cautiously approaching My Lai, C Company discovered only unarmed, unresisting old men, women and children eating breakfast or beginning the day’s chores although intelligence reports had indicated the villagers would be gone to market. Encountering only civilians and no enemy soldiers, Calley’s platoon, which was to lead the sweep through the hamlet, quickly became disorganized. Some soldiers undertook the destruction of livestock, foodstuffs, and buildings as ordered. Others collected and evacuated the Vietnamese civilians and then proceeded systematically to slaughter the villagers … After the killings at the southern edge of My Lai, Calley proceeded to the eastern portion of the hamlet. There along an irrigation ditch, another and larger group of villagers was being held by soldiers … Calley ordered the start of firing into the people and he with Meadlo and others joined in the killing.28

Calley conceded that he had participated in these killings and he was prosecuted for most of the killings. The trial of Lieutenant Calley took place five years before the end of the Vietnam War. And while the trial was not properly a war crimes trial in the international sense, it did concern what were violations of the rules of war, as interpreted by the US Uniform Code of Military Justice. Calley’s defense was “that he was not legally responsible for the killings because there was an absence of malice on his part, [and] that he thought he was doing his duty in the operation, having been ordered by Captain Medina to kill everyone in the village.”29 I will just comment briefly on 28 Calley v. Callaway, United States Court of Appeals for the Fifth Circuit, September 10, 1975, 519 F.2d 184, 191–92. 29 Ibid. at 193.

72

R e t r i bu t ion

some aspects of this trial before going on to discuss more general issues about such trials that are conducted before the end of war. First, the trial did have quite a significant effect on how the war was perceived by those who were serving in the military in Vietnam. The trial heightened awareness of the responsibility of soldiers to minimize civilian casualties as well as of the prohibition on targeting civilians. And especially since Calley was convicted by a court martial proceeding, there was a deterrent effect, at least judged by the reaction in the media to the trial and its outcome. No soldier wanted to be put on the cover of major news magazines back home because of alleged war crimes  – indeed no one wanted to be known back home as a war criminal rather than a war hero. Even though arguably there were special circumstances in this incident, such as the lack of training of the US personnel and the fact that civilians, even children, had been used by the Vietcong as killers as well as human shields, it seems that there was a wide deterrent effect on misconduct by the US military forces in Vietnam after Calley was tried and convicted. Second, there were also strong effects on the ability of the US to sustain troop morale as well as morale at home concerning the war effort. Many articles were written about how My Lai and other related incidents undermined support for the war and probably led to the strong decline in public support for that war. Of course this effect can be seen in two very different lights. One could say that this is a reason not to have wartime trials since these trials make it very difficult for the war to be effectively fought to victory. Or one could say that this is a reason to have such wartime trials since they make it hard for States effectively to wage wars contrary to the rules of war. The trial of Lieutenant Calley is often described as a watershed event for how the US saw itself – not as a liberating force for good, but as a force for oppression and even atrocity. While the trial court judge intimated that Calley could not get a fair trial because of the adverse publicity in the media prior to his trial, the appellate court disputed the idea that the publicity was all adverse. Indeed, the appellate court said: a survey conducted for and published by Time in the first week of January 1970 (when the publicity was at its peak) reached the conclusion that there was “considerable sympathy” for Lieutenant Calley among the people interviewed. “By a margin of 55 percent to 23 percent, they believed Calley is being made a scapegoat by the Government.”30

  Ibid., at 206.

30

War crimes trials during and after war

73

Of course this does not mean that soldiers were not deterred by Calley’s prosecution, but only that the general public did not necessarily demonize Calley. And even if Calley was demonized this fact would not necessarily mean that there was a deterrent effect, since most soldiers may simply have seen Calley as a rogue soldier, and not identified with him at all in a way that would have affected their behavior. The My Lai incident and the reaction to it are not uncommon among those cases where wartime trials have been held for violations of the rules of war. As I will indicate, there are competing advantages and disadvantages for such trials, but generally I believe that there is often much net good to be achieved by holding such trials. Even in the case where it is harder to wage war, or continue to wage war, after the disclosures of a war crimes trial, this is at least a mixed result since it is not clear that a State should want to pursue a war if the tactics it has to use are likely to be labeled war crimes. In rare cases this may not be true, namely especially in cases where a State is fending off invasion by a much stronger State. But even in this kind of exceptional case, war crimes trials would at least bring to soldiers’ attention what the negative public reaction is likely to be regardless of the outcome of the war. Most importantly, States should look not only to the short-term consequences of wartime war crimes trials, but also to the somewhat longer-term issue of what the society will be like at the end of war if that war has been conducted in a way that involves war crimes. This raises jus post bellum issues that I will address in subsequent sections. In the Iraq and Afghanistan wars there have been war crimes trials conducted in the United States while those wars continue to rage. I will here set out some brief descriptions of those trials and some of the public reaction to them. In general, the public response to recent war crimes trials conducted during war is that both public and military morale has been adversely affected. As I said about the My Lai trial, this can be seen as both positive and negative. The declining morale has had an adverse impact on the support for these wars and for their continuation. And this is potentially negative if it is the case that these wars should have been fought. But it is also potentially positive in the sense that it has cast light on how even just wars (if they are) should be conducted, especially on the kind of restraints that should be placed on fighting. The most widely watched trials were those that concerned the abuses at Abu Ghraib. In part, this was probably because of the sensational images that were leaked to the press. The trials concerned allegations of US army personnel engaging in beatings, sexual assault, abuse, and torture of

74

R e t r i bu t ion

prisoners held in the Iraqi prison, Abu Ghraib, which had been infamous for torturing prisoners during Saddam Hussein’s rule. The pictures that came to the attention of the public were often very gruesome, with dogs snapping at naked prisoners, or female soldiers performing simulated sex acts with prisoners, or hooded prisoners suspended by their arms from the ceiling for long hours. The trials were court martial proceedings directed against lowerranking soldiers and some officers. Staff Sergeant Ivan Frederick pleaded guilty and was given a sentence of eight years. Ten other lower-ranking soldiers were also convicted. The only officer to be convicted was Lieutenant Colonel Steven Jordan, who was convicted only of disobeying an order to keep silent about what happened at Abu Ghraib.31 Unfortunately, the message was that commanders were not to be held responsible for the actions of their subordinates. But there was also a message sent to soldiers that they risked serious jail sentences for acting contrary to the laws of war. Another relatively recent war crimes trial conducted during war concerned the rape and killing of civilians by US soldiers at Haditha, Iraq in 2006. Trials were conducted after a long debate in the media about how to regard such a blatant violation of human rights and the rules of war. President Obama described the acts as “cold blooded murder.” Yet, seven Marines had charges against them dismissed. One Marine involved in the Haditha killings still awaits trial as of the writing of this chapter. The most recent case to go to trial concerns US Army soldiers forming themselves into a “secret self-described ‘kill team’ that repeatedly killed Afghan civilians for sport, posing for pictures with victims and taking body parts as trophies.”32 In a long interview with the New York Times, one of those who were involved said “‘A lot of guys felt gypped’ … ‘All these other soldiers have these great stories about fire fights, then here we are, we’re not getting anything. We had to just sit there and wait to be blown up.’”33 The more recent war crimes trials in the US, while war was still raging, have had similar effects to that of My Lai. Popular support for the Iraq and Afghanistan wars reached their lowest levels right after these trials. 31 See Mark Drumbl, “Editorial: Abu Ghraib Swept under the Carpet,” New York Times, August 30, 2007. 32 Charlie Savage, “Case of Accused Soldiers May be Worst of 2 Wars,” New York Times, October 3, 2010, p. A1. 33 Luke Mogelson, “The Beast in the Heart,” New York Times Magazine, May 1, 2011, pp. 34–62, 37.

War crimes trials during and after war

75

One poll found that only one-third of Americans approved of these wars after President Obama described the Haditha killings as “cold blooded.”34 Yet, there has been a very healthy debate about whether to continue in these wars if it is likely that more war crimes will be committed by US troops. Holding these trials during, as opposed to after, war certainly adds to the public consciousness about the pitfalls of sending teenagers into combat in parts of the world remote from the teenagers’ previous experiences. 4 . 4  wa r c r i m e s t r i a l s a n d pr i nc i pl e s

jus post bellum

When war ends, the jus post bellum principle of reconciliation is often one of the hardest things to achieve. Reconciliation is not merely about bringing two parties back together again, as if the relations between States or non-State actors can be assimilated to the relations between a husband and wife who have had a spat and need to be reconciled. Reconciliation can involve merely a modus vivendi where both sides agree to leave each other alone and not act hostilely toward each other. Reconciliation sometimes also involves more than a modus vivendi, where the parties come to respect each other and can live side by side in mutual cooperation. In this latter kind of reconciliation, common respect for a rule of law is also required.35 The problem is that trials often involve adversarial proceedings that can intensify the ill-will that already existed among parties. There are ways to tone down the intensity of a trial on the part of the prosecutor, but it is very difficult to curtail tactics on the part of the defense.36 Indeed, Martti Koskeniemi has suggested that there are often clashing world views that make it highly likely that war crimes defendants will try to make the fact of the trial the issue rather than their own guilt or innocence.37 Reconciliation can be thwarted in a host of ways by the kind of post war trial tactics displayed recently in the Milosevic and Saddam Hussein trials. 34 Rasmussen poll conducted in early April of 2011. 35 See the final chapter of Larry May Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005. 36 See the final chapter of Larry May, Genocide: A Normative Account, NY: Cambridge University Press, 2010 37 Martti Koskeniemi, “Between Impunity and Show Trials,” Max Planck Yearbook of United Nations Law, vol. 6, 2002, pp. 1–35.

76

R e t r i bu t ion

In an international (inter-State) war, there are several types of reconciliation that must be effected. Most obviously, the two sides to a war, normally two States, must be able to go back to a state of peace and also a situation where the parties are not acting unjustly. Since the previously warring parties most often maintain a common border, returning to a state of peace will mean that the peoples of the two States are able at least to maintain a modus vivendi with the peoples of the other State. Paradoxically, sometimes not prosecuting violations of the laws of war will make it easier to achieve this type of reconciliation. In a nontraditional war, where a State faces a non-State actor or where two non-State actors vie with one another for control of an area, as in a civil war, there is even greater likelihood that the previously warring parties will have to achieve a modus vivendi reconciliation if any kind of peace can be obtained. Indeed, something stronger than a modus vivendi reconciliation is also normally needed in such cases since the parties will live amongst each other after the war is over. The parties will often have to accept respect for one another and perhaps also respect for the rule of law in order for lasting peace to be achieved after nontraditional armed conflict ends. In general, there is also the reconciliation problem of how to reintegrate returning soldiers with the larger population, even if the soldiers are only returning from across the State’s border, or from another part of the State. If the returning soldiers are tainted by the sorts of tactics they have employed, such a reintegration will be considerably harder than if they return as virtuous soldiers who have fought with honor.38 Indeed, as I said, a Grotian defense of war crimes trials will help instill the idea that honorable fighting is the key to trying to make sure that soldiers do not merely regard themselves as hired killers and pillagers of the enemy forces. And this is crucial for how they regard those enemy forces and how they are regarded by their enemies after the war is over. In a civil (intra-State) war, even more serious problems of reintegration are likely if soldiers were involved in war crimes that are unpunished. The parties to the war who often must now live alongside one another need to feel that the other side, whether victorious or vanquished, was respectful during the war even as its soldiers tried to kill the other side’s soldiers. When war crimes are committed against your side, it is obviously considerably harder to convey that respect. If war crimes trials 38 See Larry May, “Metaphysical Guilt and Moral Taint,” in Larry May and Stacey Hoffman (eds.), Collective Responsibility, Lanham, MD: Rowman and Littlefield, 1991.

War crimes trials during and after war

77

occur after war ends there will be no effect on how the war was waged. But if war crimes trials occur during war especially early in a war, with corresponding deterrent effects, reconciliation after war’s end is considerably easier. The main positive advantage of war crimes trials during war is that wrongful tactics and practices can be stopped or deterred early enough in the current war to make a difference. And such a positive effect is quite considerable on a host of levels, both in international and civil wars. Reconciliation and the maintenance of a lasting and just peace are of central concern. In fact, the attainment of a just and lasting peace may be the only legitimate reason to have initiated war in the first place. It is important though that the resulting peace is just and this means that one should continue to worry about whether or not war crimes trials held during wartime will make it harder for a just defensive war or a war against an oppressor to be waged successfully. After war has ended, mounting a war crimes trial poses serious difficulties for reconciliation. It is hard for the vanquished side not to see war crimes trials as “victor’s justice.” And it is harder yet for the victorious side to put their heroic soldiers on trial after war’s end. Indeed, it is hard for the victorious side to think of their soldiers as anything but heroes. It is for this reason, among others, that there has been a recent trend toward holding post bellum war crimes trials in neutral States before international tribunals. The main disadvantage of these post war trials, as I’ve been arguing, is that they create serious difficulties for reconciliation. In addition, post war trials, at least of a traditional sort, greatly complicate efforts to repair as well as rebuild the rule of law as well as the infrastructures of a peaceful society. War crimes trials during war can call attention to wrongful tactics that might not have been noticed in the afterglow of victory at the end of a war. And more importantly, the disclosure of wrongful tactics in the middle of a war will possibly make it harder for that war to be pursued to victory. This can be especially problematic during civil war when it is a “cousins’ war” to use the phrase employed during the US Civil War in the nineteenth century. When “cousins” are committing war crimes against fellow “cousins,” both sides may find themselves turning against the soldiers who have committed these wrongs. When war is disclosed with all of its horrors in the early stages of battle, few would think that its normal justifications hold much sway. Comparing the human slaughter of war with gains in territory or even gains in security is not easy for people back home when they see the enemy’s soldiers as acting in disrespect of their

78

R e t r i bu t ion

own people. Later, in chapter 12, I will explain why such considerations might tell in favor of contingent pacifism rather than Just War. The jus post bellum principle of reparation is also complicated by post war trials, which often have quite different goals than those associated with repair. Reparations are very different from the kind of retribution that is the normal bailiwick of criminal trials. Reparations are backwardlooking, as is retribution, but they are very different in the way that the past is taken into account. Reparations are an attempt to repair a rift in the society with an eye toward better times in the future; whereas retribution looks back and seeks to make one pay for one’s wrong without regard to what will then happen next. I will say much more about this issue in chapters 10 and 11. A third post bellum principle, rebuilding the capacity to protect a State’s population, requires a kind of consensus that is made harder to achieve by the presence of post war trials that bring up more and more of the worst of the horrors of war. Of course, such events should not be swept under the carpet. The question is: when is the best time to bring them to the public forum that trials normally represent? When these horrors are disclosed early enough for the tactics of a war to be changed, there is at least the possibility that something good can come from the disclosure of these horrors. After war ends, the disclosure can still achieve some good but it is often at odds with the need for a society to move on, as we will see in greater detail in chapters 8 and 9. Let us turn now to the case for war crimes trials after instead of during war. The major advantages of holding war crimes trials after war ends is that troop morale and hence also the ability to pursue victory are not affected; and in addition it is easier to secure the relevant evidence for a successful prosecution. Further, there are some advantages for reconciliation as well, namely that those who are vanquished will feel that they are able to achieve justice and closure in those cases where the acts of the victorious army wronged the vanquished, or vice versa. But once we get to the point where aggression trials are held, I believe they are much better held at the beginning or during war rather than after the war ends. At least in part this is for the reason that troops then will be better able to decide whether or not to join or extricate themselves from an aggressive war. The issue of morale, as I have indicated, can become a disadvantage as much as an advantage in some cases of post war trials. But on the assumption that the war is just and its pursuit crucial for fending off aggression or stopping human rights atrocities, there are good reasons to

War crimes trials during and after war

79

support the war’s success. And if holding war crimes trials during war hampers pursuit of victory in a just war, then on morale grounds perhaps the war crimes trials should not be conducted during but only after a war has ended. Morale is crucial to victory in most wars, both that of the soldiers and also of the populace. It is often thought that wars will be won when soldiers and civilians give their all for the war effort. Yet, when the war becomes tainted by charges of abuse and atrocity committed by one’s own soldiers, this morale is much harder to maintain. War crimes trials held after war ends mean that retribution will be the primary goal of such trials, or if deterrence enters in at all it will be longterm deterrence of acts of the sort that the trial concerns. It is for this reason that such trials are difficult to justify since retribution is only one of the jus post bellum principles that needs to be satisfied. And one of the problems is that since retribution is backward-looking and most of the other jus post bellum principles are forward-looking, pursuit of a just and lasting peace tends to favor the forward-looking principles. And if instead emphasis is placed on retribution it is hard for this not to look like simple revenge when it is allowed to trump other post war principles that more surely lead to peace. At least as important is that trials will be practically difficult to pursue during wartime. It is much easier to get needed evidence and witnesses when one does not have to worry about the dangers of traversing a battlefield to exhume bodies and obtain forensic evidence. It is also considerably easier to secure testimony after war ends than it is during wartime when such testimony is likely to be perceived as restricted because of its possibility of hurting the war effort. Indeed, if the evidence is currently available in the territory of the enemy, or where passage to the site of the evidence must proceed through enemy territory, it can be dangerous and often impossible to secure that evidence for trials conducted while the war is raging. The current attempts to get witnesses in the case of the President of the Sudan, Al Bashir, at the ICC, have been almost as difficult as getting Bashir himself into the international courtroom. These practical problems mirror the conceptual and normative problems I have already addressed. A final jus post bellum consideration is about a different sort of rebuilding, that which concerns the rule of law. It is not surprising that holding war crimes trials can often aid in the reintroduction of the rule of law in war-torn societies. This is best accomplished by trials that are held after war has ended, but it can sometimes be accomplished during a war as well. It may be surprising though that sometimes the rule of law is

80

R e t r i bu t ion

not best promoted by having high-profile emotionally laden trials while a society is trying to heal from a devastating war. In such cases, the goal of establishing a lasting rule of law in a given society may require that war crimes trials be dispensed with. Overall though, I continue to support post bellum war crimes trials. Both post bellum trials and those conducted during wartime have positive and negative consequences. In this chapter I have expressed a weak preference for war crimes trials conducted during war, which is perhaps fueled by my distrust of the justifiability of most wars. Holding war crimes trials is difficult in the best of circumstances. But war is just the kind of thing that should be restrained by the law. 4 .5  obj e c t ions I will finally consider a set of objections to what I have set out above. First, consider an objection based on the case concerning the indictment and arrest of President Al Bashir for genocide in the Darfur region of the Sudan. A trial to be held during the war in the Sudan, a war that seems to have no end in sight after many years of raging already, is not only difficult to stage but also of questionable consequences for the people who are the victims of the ongoing genocide. Tyrants who can temporarily evade international sanctions are also likely to be able to inflict very serious recriminations on the part of its population that has called for indictment or arrest. While it is true that tyrants can exact serious penalties on their population, it is also true that letting tyrants get away with impunity is a serious problem, and one not just limited to the country in question. Serving notice on tyrants that their deeds will be overseen by the international community also acts as a deterrent to other tyrants and strong leaders across the world that their gross violations of human rights will be subject to similar oversight. So, in doing the calculation of what are the costs and benefits of indicting and arresting State leaders for gross violations of human rights, even while war rages, the deterrence value of such actions needs to be factored in along with the help for victims of tyrannical abuse worldwide. In my view, the right judgment was made in the case of Al Bashir. A second objection is that the My Lai example betrays a potentially very costly consequence of holding trials in the midst of an ongoing war, namely that the war will be very hard to pursue to victory, even if there is a just cause for fighting it. If Grotius is right to think that soldiers, and

War crimes trials during and after war

81

their leaders, would not fight wars whose tactics they believe to be unjust, and if it is hard to tell in the midst of a war whether tactics are indeed unjust, then war crimes trials will deter people from continuing those wars despite the fact that these might be just wars. Despite what I argued above, it is often not for the best to stop a just war merely because it is being fought unjustly. This is surely one of the most difficult issues raised by this chapter. If we separate jus ad bellum from jus in bello, then we can see that wars can still satisfy the former even as they fail in some respects to satisfy the latter. But it is my view that these considerations are not separable in this way. When a war is fought in such a way that serious human rights violations have occurred this will sometimes affect the justness of the war, both overall and even concerning the justice of initiating this war. And in any event, soldiers as well as their leaders should be given the choice about whether to continue a war that is currently understood to be unjustly waged. A third objection is that I have allowed considerations of reconciliation and other jus post bellum principles such as reparations to trump, or at least limit, retribution as an important principle in jus post bellum. The victims of war or armed conflict often find it difficult to reach closure without a trial that prosecutes those who killed their relatives or harmed them. While it is good to aim for reconciliation, so that a society can move on, it is a mistake to do so at the expense of victims and at the further cost of allowing perpetrators to think that they can act with impunity. My response is to acknowledge that a delicate balance is called for in order to produce a peace that is also just in the sense that it does not run roughshod over the rights of victims and their families. In other chapters I argue that when victims are denied retribution so as to allow for a greater likelihood of peace they should nonetheless be given reparations, even if paying the bill must be had by enlisting those who did not cause the harms that are in need of being repaired. Finally, one could object that I have still not offered much help to those who are accused of victor’s justice when trials are held against only one side either during or right after war ends. And because war crimes trials are so likely to be simply skewed by victor’s justice it is a mistake to defend them at all. Indeed, recent history has shown that the tendency of war crimes trials for jus in bello violations to be show trials is getting higher. And there is no good reason to think that things will get better when jus ad bellum trials begin. Indeed, the determination that a state has engaged in aggressive war is so fraught with political considerations

82

R e t r i bu t ion

that it is very unlikely that anything like an objective judgment can be reached that does not favor the victor. It is indeed incumbent on anyone who defends war crimes trials to take account of this serious objection. It is my view that war crimes trials can be conceived in such a way that they do not fall prey to the victor’s justice objection. But I would be one of the first to admit that many war crimes trials, including the famous Nuremberg trials, have indeed looked more like victor’s justice than proper trials. What is needed is for international oversight not to favor one side or the other, even when it appears that one side is clearly the aggressor. For even when a war is just, crimes concerning tactics can still be discovered and should be prosecuted just as is true of war crimes committed by those who initiate aggressive war. War crimes trials conducted during or after war’s end are defensible when they are supervised in such a way that impartial oversight is maintained for the activities of both sides. In this chapter I have defended the use of trials for war crimes understood broadly to include violations of the rules of war, genocide, crimes against humanity, and the crime of aggression. I have indicated that trials conducted during war or mass atrocity have certain advantages over trials conducted when the conflict is over, including that it is hard to tell when mass conflicts have indeed finally ended. But I have also given reasons to think that trials conducted after the end of conflict are also quite defensible. In terms of satisfying the jus post bellum normative principle of retribution, trials offer one of the best strategies, even if we must restrict such trials in light of other jus post bellum principles, such as reconciliation, reparations, and rebuilding.

pa r t I I

Reconciliation

ch apter 5

Reconciliation of warring parties

One of the central worries of the previous chapters on retribution was that holding a criminal trial for war crimes sometimes makes reconciliation harder. Political reconciliation involves bringing parties to the point where they have respect for each other’s rights and can live peaceably together. After a war or mass atrocity it is especially hard to achieve reconciliation. In this chapter I will address this topic by examining how best to overcome post war attitudes of mistrust among previously warring parties, especially mistrust that they will not be treated with equal respect. I will focus on the attitudes that are generated due to policies of how the war or atrocity was conducted by soldiers or other agents of the State. While reconciliation is clearly a paradigmatic jus post bellum principle, I will address it also in terms of jus in bello in this chapter since it is underappreciated, I believe, how attitudes toward soldiers on both sides during war or armed conflict will affect the ability to achieve reconciliation after war ends. The structure of the chapter is as follows. First, I will rehearse some of my previously published views about the nature of reconciliation. Second, I will describe the current debate about what jus in bello posture we should take toward soldiers who participate in unjust wars or who in some other way act immorally during war or times of political crisis. Third, I will explain in more general terms how jus post bellum considerations can affect jus in bello ones. Fourth, I will then revisit the conceptualization of political reconciliation in terms of post war attitudes toward those who have recently been one’s enemies, suggesting two normative principles that might be usefully applied to such situations. Finally I will discuss some objections to my diagnosis and solution to these problems of post war reconciliation. In this respect I will be especially concerned with the challenge that reconciliation is too amorphous a category to count as a jus post bellum normative principle. 85

86

R e c onc i l i at ion 5.1  a c onc e p t ion of r e c onc i l i at ion

In my previous writings I have described an approach to reconciliation that puts emphasis on human rights protection.1 It is not sufficient normatively that people stop fighting with each other. What is crucial is that each person comes to understand that each has equal status before the law. Also each person needs to see what roles were played in the war or mass atrocity, including what could and should have been done to prevent the violence. An understanding of these things is the key to reconciliation in my account. But there are other elements as well, including having the proper attitude toward pursuing peace rather than continuing violence. Moral repair is needed for reconciliation to take place, and such repair requires a change in attitude so that people have a modicum of trust in one another.2 Reconciliation as a jus post bellum concept involves a process of returning previously warring parties to a point not only where they do not engage in violence toward each other but also where there is sufficient trust so that a robust and just peace can be attained – and where a just peace means that human rights are protected. In general, trust is sufficient for reconciliation where two people think they will not discount one another’s interests. When marital reconciliation is achieved, it is often thought to be enough that the people stop fighting with each other. When we are discussing political reconciliation, more is required than merely a stop to hostilities, since there can be such a halt and still have major human rights abuses occurring. Political reconciliation, unlike marital reconciliation, is not merely about a change of attitude but also involves the kind of change in understanding of the respect due to one another that is the hallmark of a society where rights are respected. The change in understanding required of political reconciliation also involves how one sees oneself, and others, as agents who are not passive in the face of disrespect. Many people in a society, especially one that has been racked by violence, view themselves primarily as passive recipients of the violence all around them. They do not recognize that in many cases they were either complicit in the violence or could have done various things to prevent the violence. And in other cases there were actions that could have been taken that would have greatly lessened the likelihood 1 See Larry May, Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005, ch. 13. 2 See Larry May, Genocide: A Normative Account, NY: Cambridge University Press, 2010, ch. 13.

Reconciliation of warring parties

87

of harm to their neighbors and compatriots. Rather than seeing themselves as passive bystanders to the violence, people need to see themselves as agents of reaction and change, at least concerning their actions in the future. In discussions of retribution for war and mass atrocity, it makes sense to focus on the perpetrators, namely those guilty parties whose wrongdoing has caused the harms. While some bystanders may be complicit in a way that triggers retribution, most of the guilty parties will be direct perpetrators, both those who ordered the violence to occur and those who did the acts of violence, on the ground as it were. Retribution involving guilt and punishment makes sense for those who are most responsible for war and mass atrocity, and these are the direct perpetrators. Courts and tribunals are especially good at ferreting out who the direct perpetrators are and discerning their level of guilt. Trials are also fairly good at determining guilt and punishment for those who aided or abetted the direct perpetrators, especially when the level of complicity is fairly high and easy to ascertain.3 But in my view, a different kind of focus is needed to attain reconciliation. Here the focus should be on the bystanders, namely those who could have made a difference in preventing, stopping, or ameliorating disrespect and violence. For it to be less likely that violence will occur in the future, it is not only the perpetrators that need to have a change of understanding. At least if not more important is that the people who were bystanders in the past no longer see themselves as passive concerning future possibilities of stopping or preventing violence. And for bystanders to see themselves as active not passive regarding war and atrocities, they need an understanding of themselves generally as active agents within their societies. Of course, not everyone can take action at present to prevent, stop, or ameliorate wars and mass violence, but so many can that it makes sense for everyone to come to understand these roles as potentially their own in the future. Part of changing behavior is making people aware of the options they have. This involves imagining different scenarios than the ones that a given person has experienced in the past, and a corresponding change of understanding of one’s potential. Imagining alternatives is the key to getting people to see themselves as potential agents in the world. And the more people understand themselves as agents the greater the chance there is to prevent, stop, or ameliorate violence in the future

  See ibid., ch. 9.

3

88

R e c onc i l i at ion

and hence to start on the road to political reconciliation. But change in understanding is not sufficient for reconciliation, since being an agent does not yet mean that one will use one’s agency in a positive way on the road toward achieving peace. In addition to changes in understanding one’s role, for reconciliation to be a live option, people also need to have various changes in attitude that will make them more likely to pursue peace rather than war or violence in the future. Thomas Hobbes was one of the first modern thinkers to discuss this issue when he set as his first law of nature that people should be always ready to pursue peace, even as they recognize that they will sometimes have to pursue war to protect their interests. But it is not often noticed that for Hobbes the first and most fundamental law of nature is that people should pursue peace in the sense that they stand ready, as a matter of attitude, to do whatever is necessary to pursue peace in their societies. The attitudes of peacemaking are largely those that would move one away from attitudes of nationalism and toward attitudes supportive of humanity. By this I mean to refer to the age-old concept of the society of all people, of humanity, as standing against the society of merely one’s compatriots, of just one nation. Instilling attitudes of supporting peace rather than violence will often involve getting people to have the attitude of “citizens of the world” rather than that of citizens of a particular nation. Another way to think about reconciliation is in terms of the concept of meionexia that I began to explore in chapter 1. Meionexia, the disposition to demand less than is one’s due, can be seen as undergirding the reconciliatory disposition to compromise. If a person is focused on getting all that is one’s due, especially if the situation after war ends is one of significant scarcity, reconciliation may not be accomplished without a change of attitude toward a spirit of cooperation and also compromise. I indicated earlier that I thought that victims should not be encouraged to accept less than their due, but at the end of war there are often lots of people who are not victims, especially on the victorious side. Meionexia is a principle of justice that seems to sit uncomfortably with standard conceptions of distributive justice. Fairness issues arise in especially poignant form. But reconciliation is a largely voluntary set of norms where people engage in cooperative compromising that is aimed at achieving a just and lasting peace. If the normal set of distributions are disrupted so as to achieve reconciliation, and this is done voluntarily by the parties, fairness is not as offended as it would be in other situations

Reconciliation of warring parties

89

where a result does not satisfy distributive justice understood in terms of giving to people based on what is due them or what are their just deserts. Most importantly, meionexia is deeply intertwined with successful reconciliation in that it fosters a disposition to cooperate for the larger good by agreeing not to demand what is one’s due. As we saw in the discussion of retribution in earlier chapters, demanding less than one is due is often important for not being forced to hold criminal trials at the end of a war when such a trial is likely to make matters far worse in the society. Of course, one must be careful not to go too far in this domain. But we can see how meionexia may provide support for such practices, especially in providing the grounding for reconciliatory attitudes. But more than just attitude change is necessary for political reconciliation. Colleen Murphy has argued that reconciliation “involves cultivation of principles of political relationships premised on … the ideals of the rule of law, political trust, and support of individual capabilities.”4 This view, worked out in elaborate detail by Murphy, is consistent with the view that I will develop in this chapter, although I have come to these ideas from a somewhat different set of assumptions and concerns than those of Murphy. Murphy focuses on overcoming a climate of corruption and oppression, whereas I am concerned with healing the wounds inflicted by war and mass atrocity where there may not have been the kind of institutionalized oppression that Murphy addresses. In the next section I will say much more about the specific types of attitude changes that are necessary for political reconciliation among previously warring parties, focusing on attitudes toward those who had previously been enemies of one’s own nation or ethnic group.5 5.2  at t i t u de s t owa r d s ol di e r s w ho pa r t ic i pat e i n u n j us t wa r s Of the attitudinal changes that are most important in attaining reconciliation is the attitude toward returning soldiers. And the hardest issue to deal with is that of having positive attitudes toward those soldiers who participated in an unjust war of aggression, or a mass atrocity, against one’s own nation or ethnic group. In situations where wartime conflict 4 Colleen Murphy, A Moral Theory of Political Reconciliation, Cambridge University Press, 2010, p. 28. 5 See Larry May, “Hobbes on the Attitudes of Pacifism,” in Martin Bertman and Michel Malherbe (eds.), Thomas Hobbes: De la métaphysique à la politique, Paris: Librairie Philosophique J. Vrin, 1989, pp. 129–40.

90

R e c onc i l i at ion

has been especially intense and where many people are drawn into the conflict, reconciliation can be very difficult. This is especially true if there has been a civil war, or ethnic violence campaign restricted within the borders of one State. In such situations, it is difficult to get previously warring parties to have positive attitudes toward each other, because of the deep distrust they have for one another. But without these peaceful attitudes, reconciliation is difficult if not impossible. In the jus in bello branch of the Just War tradition, all soldiers are viewed the same, regardless of whether they participate in an unjust or a just war. As long as the soldiers adhere to the laws of war governing their stations, they are all to be treated equally. This means that at the end of a war, soldiers returning to their villages, even in a civil war, will be treated the same regardless of whether they were unlucky enough to be on the losing side, and even if they were on the side of the aggressor. And it is my contention, that such treatment will encourage people to have attitudes toward both sides’ soldiers that are more in keeping with attitudes of humanity than nationalism, thereby making reconciliation easier than if the soldiers were associated with the side they fought on. The doctrine of the so-called “moral equality of soldiers” has recently come under sustained and often plausible attack from moral philosophers who rightly worry that those who are unjust aggressors are being treated lightly despite engaging in very serious moral wrongs.6 Given that some soldiers are the instruments of aggression and other soldiers are the instruments of self-defense, surely we should treat the aggressing soldiers as morally culpable and the defending soldiers as not culpable for the ensuing violence. And in this scenario, there would be a deterrent effect on soldiers fighting on the unjust side of a war that might have profound consequences for long-term peace. So, in this view, even if we have different attitudes toward soldiers based on which side they fought, reconciliation may not be adversely affected. In the remainder of this section, I will respond to the new critics of the “moral equality of soldiers” view, especially in light of jus post bellum considerations. I begin by acknowledging that the new critics are right to think that there will likely be some deterrent effects of holding aggressing soldiers accountable for participating in an unjust war. And these effects should not be dismissed since deterring future violence is crucial for longlasting reconciliation. Indeed, it is crucial to get soldiers to worry about See Jeff McMahan, Killing in War, Oxford University Press, 2009; and C. A. J. Coady, Morality and Political Violence, Cambridge University Press, 2008. 6

Reconciliation of warring parties

91

what are the moral costs of participating in campaigns of violence. And I support such an attempt to get people to think about whether or not their side has justly initiated war. But it is often very difficult for soldiers to gain this information. And the fairness of holding soldiers liable for the character of the war they fight in, given these epistemic problems, is a continuing worry that I have with the new critics.7 Like all forms of post war accountability, there are countervailing effects as well, which I will now attempt to explain in some detail. Accusatory proceedings, as is true of most criminal proceedings, stir up nationalist or group-based sympathies and undermine the attitudes of peacefulness on which reconciliation is premised. Of course, the critics would urge that the proceedings not take on an overly accusatory tone. But if the aggressing soldiers really are morally liable for their acts of violence in ways the defending soldiers are not, such a view will indeed encourage quite different attitudes toward these different groups of soldiers. Specifically, attitudes of blame or even condemnation toward the aggressing soldiers would seem to be hard to cabin so that accusatory feelings are kept out. Post war attitudes toward soldiers should be highlighted as especially problematic for reconciliation. Demonization of one side or the other’s soldiers makes reintegration into society quite difficult. The idea behind support for the moral equality of soldiers is to get people to think of themselves as primarily similar rather than different, so that attitudes of respect can return for all members of a given society, or between members of two societies. Treating soldiers, who basically do the same job regardless of which side they serve on, as equals is a way to reinforce this idea that similarities rather than differences are the most important thing to focus on. In addition, it is important that soldiers also focus on similarities insofar as they see themselves as professionals who are generally doing their patriotic duty. One could respond that soldiers who kill on an unjust side are like murderers but soldiers who kill on a just side are not like murderers at all, but rather like individuals who are merely engaging in self-defense. But the reality of war, involving mass violence not merely one-on-one violence, is that often the soldiers do not know enough about the type of war they fight, and could not reasonably be expected to overcome their ignorance, to support the two-person analogy. Soldiers, unlike murderers or self-defenders, are first and foremost professionals who are doing a See Larry May, “Contingent Pacifism and the Moral Risks of Participation in War,” Public Affairs Quarterly, vol. 25, no. 2, April 2011, pp. 95–111. 7

92

R e c onc i l i at ion

job that in most cases is undertaken for similar and highly praiseworthy goals, such as patriotism. Acting out of patriotism is not like being a murderer or a self-defender. But there is a problem if soldiers focus too much on patriotism, and its connected idea of nationalism, rather than on professionalism, that looks to a universal code of conduct for all soldiers regardless of nationality. Again, this is why the moral equality of soldiers thesis is beneficial. This thesis calls for soldiers to focus on their similar moral status by reference to universal rather than parochial standards of morality. And while it is true that the critics also urge that we focus on the universal aspects of morality, in particular the rightness or wrongness of the war, by doing so they clearly separate soldiers. And this means that some soldiers are to be morally criticized, perhaps even condemned, for what they thought was right conduct, but which they should have known to be wrongful conduct. I agree with the critics of the moral equality of soldiers in that we should not grant overriding moral credit for doing what patriotism commands. It should not be that soldiers are treated as moral equals because they all act patriotically. Rather soldiers should be treated as moral equals insofar as they conform to a universal set of professional standards governing all soldiers. What is best is for soldiers to act as professionals and to be able to return home with the expectation that if they have conformed to these professional standards they will be accepted even if they ended up fighting as professional soldiers on the unjust side of a war. And when these soldiers are indeed accepted back, reconciliation between previously warring parties is made easier than if they are not so accepted. I hope I have now made integration and acceptance of returning soldiers in war a clearly intuitive basis of political reconciliation. But what of soldiers, such as those at My Lai, who are returning to their homes after they have participated in mass atrocities? Should they be similarly treated according to the same standards as those who tried to stop a massacre? Initially, it seems clear that the answer should be “no” here. Soldiers who participate in mass atrocities seem pretty clearly to be ones who have violated the laws of war as well as the related code of professional conduct of soldiers and hence have only limited claims on moral respect. And I am also inclined to agree, at least in those cases where what the soldiers did was clearly a violation of the rules of war. But there are other cases to consider where the answer is not quite so clear. Consider a case where the orders given are not palpably against the rules of war. Imagine a case where a soldier is told that a group of civilians

Reconciliation of warring parties

93

are actually disguised combatants who should be attacked just as would be true for any other group of combatants. It is of course a violation of the rules of war intentionally to target civilians. But if the commander tells the soldiers that the group is not really civilians, and orders the group to be attacked, then this case comes to resemble soldiers unknowingly fighting in a war of aggression and should be treated the same as that case despite the fact that it is participation in a mass atrocity that it at issue. 5.3  a s s i m i l at ion of s ol di e r s a f t e r wa r e n d s There is a relationship between the branches of the Just War tradition. In this section I will elaborate on my previous implicit suggestion that considerations of the jus post bellum principle of reconciliation color how we understand the behavior of soldiers during war. The general idea is that concern about assimilating soldiers back into their communities should color how we view their participation in wars, even those that are unjust wars. I will defend the idea that we should give soldiers the benefit of the doubt in jus in bello judgments about tactics and weapons so as to advance jus post bellum goals such as reconciliation. The rules of war can be applied more or less strictly and these rules can also be applied differentially based on jus ad bellum considerations, such as whether or not there is just cause for the initiation of the war. In deciding how to understand and apply the rules of jus in bello, it is often relevant whether or not the particular application of these rules will have an impact on such things as political reconciliation. What would be odd indeed is for these branches of the Just War tradition to have no relationship with each other. The critics of the moral equality of soldiers thesis and I agree that one should not attempt to isolate the branches of that tradition. And if one accepts that there can be such a relationship between and among the various parts of the Just War doctrine, then an obvious place to start is by looking at both how wars are started, and how they are conducted, from the standpoint of how they are to be resolved. Political reconciliation in particular seems to be of prime concern for how we assess earlier stages of the war. While not all wars are fought so that there can be peace, surely the vast majority of wars have this as their goal if they are to be justified, as nearly everyone in the Just War tradition has recognized. Indeed, the reigning view of war articulated in the United Nations Charter is that war is only to be pursued so that a long-lasting peace can be achieved. And so, it is often, if not normally, the case that it

94

R e c onc i l i at ion

will matter at the earlier stages of the war whether decisions that are made will make a just peace less or more likely after war ends. Jus post bellum considerations put restraints on jus ad bellum ones, as I will argue in great detail later, as well as on jus in bello.8 And the central place of reconciliation in the contemporary discussion of justifiable war makes this clear. Political reconciliation is not normally a reason to go to war, but it is often a limit on what would count as a justly initiated war. There are cases involving repelling an aggressor, who is bent on conquering a people, where self-defense alone is sufficient for justly initiating war. Indeed, it seems odd to suggest that anything could outweigh such a paradigmatic justly initiated war. But it is well-recognized that proportionality considerations are limits here, requiring that a State not completely destroy the aggressor unless this is somehow necessary for self-defense. So, just causes, even paradigmatic just causes, can be overridden by other moral considerations. And it seems to me that if waging a certain war, that has a just cause, would require severe damage of the other party that could not easily be repaired, and that would seriously jeopardize reconciliation at war’s end, then we also have a case of jus post bellum considerations limiting jus ad bellum ones. We might quibble about whether to call this a limitation or use some other term, but the cases seem intuitively clear-cut. Political reconciliation, as a jus post bellum principle, also places limits on the kinds of tactics and battles in the conduct of a war. Here it is even clearer what kind of cases would be involved. Tactical considerations can deeply offend the members of a population, such as when air strikes from very high altitudes are used in order to spare the lives of a few soldiers but at the risk of greater casualties of civilians. It might be thought that the jus in bello proportionality principle is satisfied in such a case as long as the civilians are those who are members of an aggressive State. But the jus post bellum issues are clear-cut. Sparing a few soldiers at the cost of many civilian casualties is the kind of act that people will obviously remember, and resent. Because such an act shows so little respect for civilian lives, these civilians will be far less likely to reconcile after the war is over. Another obvious problem with tactics concerns the destruction of homes and farms. Because this is not a matter of killing, such tactics are not normally subjected to the same strict prohibitions and severe proportionality calculations as is true of the taking of civilian lives. But the

  See ch. 9.

8

Reconciliation of warring parties

95

destruction of homes or farms can have very pernicious long-term consequences. Think of Sherman’s notorious march to the sea during the US Civil War, where as he marched he burned houses and fields to let the Confederate forces know what sort of devastation awaited the rest of the South if it did not surrender. A hundred and fifty years later people still hold deep resentments for this callous disregard for the civilian population of Georgia. Such devastation made reconciliation after the US Civil War extremely difficult. Indeed, some would say that reconciliation was not achieved for several generations, in part because of these and similar tactics that clearly showed contempt, not respect, for one side of the warring parties. Yet another case is the destruction of places of worship, or the theft of important cultural artifacts such as religious statues. The symbolic significance of such tactics has little value in the standard calculations of jus in bello. But such symbolism is very significant in possible reconciliation after a war comes to an end. A nation or ethnic group is not just defined by its population, but also by its culture. And certain artifacts have special place in a culture. Among the most important are religious or historical artifacts that are invested with meaning by that population. While in some ways the high value placed in these objects is not fully rational, it is nonetheless often a fact of the matter. Seizing or destroying these artifacts or buildings can make the post war deliberations very difficult indeed. As is true of assaults on civilian populations, assaults on cultural artifacts and buildings are proscribed by the jus post bellum principle of reconciliation and is hence a limit on jus in bello tactics. Of course, one could wonder why jus post bellum considerations trump jus in bello ones. It might be said that winning a war is more important than what happens after that war is over, especially if the tactics in question are those of the party that has a clear just cause to wage that war. But as I argued in chapter 1, war is not normally justified unless it is in pursuit of a just and lasting peace; and lasting peace normally requires reconciliation. So, except in the most extreme case, there will be limits on tactics that are governed by jus post bellum principles such as reconciliation. Lasting peace is the kind of aim that cannot normally be achieved if devastating tactics are employed of the sort I have mentioned in this section. In the next section I will attempt to formulate jus post bellum principles of reconciliation that are aimed at just the kind of cases I have been describing, where devastation of persons or cultural artifacts are involved.

96

R e c onc i l i at ion 5. 4  f or m u l at i ng nor m at i v e r e c onc i l i at ion pr i nc i pl e s

Let us begin thinking about normative principles of reconciliation where we just left off. Here is a first principle of reconciliation: There is an obligation to treat those against whom war has been waged as deserving of equal basic respect, regardless of which side of the war a person is from.

A second principle of reconciliation is this: There is an obligation to initiate and conduct war in such a way that one does not unduly antagonize the people with whom one will eventually have to reach a peaceful accord.

These principles will need to be specified in various ways but it is clear that something like these principles gets to the heart of the matter of giving normative guidance concerning reconciliation for previously warring parties. One way to add specificity concerns the level of antagonism that triggers the claim of being “undue” in the second principle. This is meant to be a restriction on jus in bello considerations by reference to the jus post bellum principle of reconciliation. I mentioned several examples earlier, such as not employing tactics meant to preserve the lives of a few soldiers at the cost of more civilian lives. But even what counts as an antagonism cannot be specified outside of the particular context of a given war or atrocity. As with most work of this sort, where rules are promulgated that will cover disparate situations, specification will be best if it is in terms of categories of possible application rather than a one-size-fits-all rule. A second suggestion is to specify how much equality is called for in the first principle. Equality is a term that admits of quite a lot of latitude. Hardly ever is it even possible for exact equality to be had, even concerning such matters as respect. So, the form of equality will be approximate and will also be something that needs to be tailored to distinct categories. But the idea is that people will come to see other people from disparate countries and ethnicities as deserving of the same basic respect that they would show toward their neighbors. Ultimately what is hoped for is that the humanity of those they encounter will matter more than where they come from or what their background is. And while reconciliation does not require such a wide-ranging principle as that of humanity, global justice and lasting peace is surely premised on that idea.9 See Erin Daly and Jeremy Sarkin, Reconciliation in Divided Societies, Philadelphia: University of Pennsylvania Press, 2007, especially pp. 7–12. 9

Reconciliation of warring parties

97

The obvious worry with such principles is that they will reward those people whose State has acted in an aggressive as opposed to a peaceable manner in initiating war or mass atrocity. Political reconciliation cannot be achieved in a unilateral manner  – both sides must act with respect, even in times of war, if peaceful accord will be reached at the end of a conflict. I have been emphasizing that attaining peace is the objective of nearly all wars. And if this is true, and if reconciliation is necessary for lasting peace, then reconciliation principles should apply to both warring parties. Asking both sides to contribute to reconciliation makes sense only if there is sufficient hope that reconciliation can be achieved, as we saw in the earlier analysis. But why should these principles apply equally to both sides? If one side is clearly in the wrong because it initiated an unjust war, why shouldn’t the consequence be that the side in the right has less of a duty of reconciliation than the side that was in the wrong? My view is that such an asymmetrical view of reconciliation will often fail. If one party can wait for the other party to show good faith in reconciliation then it will often turn out that reconciliation is not as likely to occur as if both sides feel they have a strong, and equal, duty to initiate such a reconciliatory process. The asymmetrical view of reconciliation will indeed indicate which one of the parties is most at fault for the war or mass atrocity, but it will not advance the goal of reconciliation. Political reconciliation is not about fault, or blame. Instead, it is about getting beyond recriminations, which are bound to intensify if the parties are treated as significantly different from one another. If one party has caused harm to itself by its wrongful actions, I will later argue that restitution may not be required to this party at war’s end.10 But political reconciliation is not, unlike restitution, about restoring a balance between two parties. Rather, reconciliation concerns getting two parties to be able to live amicably with each other in a future state of just and lasting peace. It may be that some restitution is necessary for reconciliation, but different considerations govern these two principles of jus post bellum. Restitution and retribution look to the past, whereas reconciliation looks to the future. Insofar as the future is shaped by certain aspects of the past, restitution may be relevant to reconciliation. But I am not persuaded to treat reconciliation similarly to restitution concerning the setting of different normative standards for those who fought with just cause and those who did not. Just as a tango requires two parties, so

10

  See ch. 10.

98

R e c onc i l i at ion

does reconciliation. And just as in dance, reconciliation works out for the best when both parties equally apply themselves to the task. 5.5  t ru t h a n d r e c onc i l i at ion c om m i s s ions a n d lus t r at ion In the transitional justice literature it has seemed to some that reconciliation cannot be achieved through the use of trials but must come through nonaccusatory systems such as “Truth and Reconciliation Commissions.” One of the chief aims of truth commissions is to promote healing within communities that have been ravaged by war or mass violence. In this view, healing is perceived to be a key to the achievement of the kind of reconciliation that will lead to the return of a just and lasting peace. The idea is that the first thing that needs to occur is for the people in a war-ravaged society to come to terms with the “truth” of what happened. Once truth has been recognized then the process of healing, of moving forward, can occur.11 Truth commissions are seen as a kind of compromise between impunity and formal retributive trials. In this sense truth commissions seem to be especially well-suited to the idea of transitional justice described in chapter 1, namely justice understood as meionexia. As an example we can think of the case of Steve Biko in South Africa. When the Truth and Reconciliation Commission (TRC) enabling legislation was passed it ruled out the use of trials while the TRC was functioning. The relatives of the activist Steve Biko, who was killed for his opposition to apartheid, sued to allow a criminal trial to prosecute the perpetrators. The family lost its case largely on the grounds that holding such trials would disrupt the fragile peace. Here, in effect, the Biko family was being urged to demand less than was their due. I do not generally favor such settlements since they seem to disfavor the most vulnerable members of the society. I have instead argued that governments and groups that have been aggrieved should settle for compromises, not individual victims. But the idea behind the TRC was definitely in the spirit of meionexia, as is often true of truth commissions. As we saw in earlier chapters, compromises that sacrifice criminal trials are said to be justified on grounds of reconciliation. Now we have a better sense of what that means by having elaborated on the project of reconciliation. 11 See Mark Freeman, Truth Commissions and Procedural Fairness, Cambridge University Press, 2006, especially pp. 33–40.

Reconciliation of warring parties

99

But truth commissions have been roundly criticized for lacking in procedural safeguards for the alleged perpetrators who are asked, and sometimes forced, to come before them. In particular, the nonarbitrariness of trials is looked to as the model for truth commissions as well, although truth commissions rarely live up to the standards set by trials in terms of fairness.12 Truth commissions have as their aim “peaceful coexistence” and “the prevention of future injustices modeled on past patterns of abuse.” The “moral significance” of the facts must be recognized, but that is harder than is usually understood, and yet without this it appears that it will be very hard to reach these objectives.13 How can people who previously were warring against each other come to have equal basic respect for each other? This is not a conceptual or normative question, but an empirical and psychological question.14 But I will offer just a few words here before moving on to consider objections to my account of reconciliation as a jus post bellum normative principle. Setting principles or rules does not necessarily change behavior, but it can influence behavior. This is why so much attention is paid to rules in law as well as in morality. The task of setting jus post bellum principles is to try to influence behavior by sketching what just behavior looks like even in the most difficult of times, at the end of war or mass atrocity when feelings of retaliation and revenge are at their greatest. Jus post bellum principles have as one of their aims to try to offset the normal psychological reactions felt at such emotional times. And the principles of reconciliation are some of the most important in inspiring people to respect one another. As various post war situations are confronted it will be especially important to have principles of reconciliation to guide societies in transition. I have been guided by significant work done on how to reform courts and other accountability mechanisms so as to establish or reestablish a rule of law and trust in the political institutions of a war-ravaged society. Before engaging in that project in the next chapter let me say a few words about another alternative issue that is relevant to my project, whether lustration is a reasonable response to the need for reconciliation. Initially, it may seem that one of the best ways to demonstrate that things have changed for the better is to dismiss the public officials who are most 12 See ibid., ch. 2. 13 See Allison Mitchell, “When Philosophical Assumptions Matter,” in Nancy Potter (ed.), Trauma, Truth, and Reconciliation, Oxford University Press, 2006, pp. 112–26. 14 See Deborah Spitz, “How Much Truth and How Much Reconciliation: Intrapsychic, Interpersonal, and Social Aspects of Resolution,” in Potter (ed.), Trauma, Truth, and Reconciliation, pp. 127–38.

100

R e c onc i l i at ion

associated with the old regime where aggressive war or atrocities were approved or at least not strongly discouraged. Releasing or firing the bureaucrats who should have done more to stop, or were actively complicit in, the war or atrocities, seems like an obvious place to begin in establishing a rule of law in a society where it was absent or badly damaged. In this sense, lustration seems to be just the kind of activity that will be directed at the rule of law and especially political trust. One significant problem with lustration, though, is that in many societies the people who would be the subject of lustration campaigns are also some of the only people who know how the government runs on a day-to-day basis. The second war against Iraq that the US waged in the aftermath of the September 11, 2001 attacks on the World Trade Center in New York illustrates the problem. Members of the Baathist Party, loyal to Saddam Hussein, were all dismissed from their government sector jobs on the grounds that they had at very least been complicit with Saddam in oppressing large portions of the Iraqi society. But after they were dismissed it took several years before a new corps of bureaucrats could be trained. In the meantime public services ground to a halt, including most importantly the delivery of mail and even of electricity. Such cuts in public services made people increasingly hostile to the efforts to build a new society on the principles of rule of law and political trust. Lustration is normally aimed at lower-level officials in a government, and these individuals normally are not the ones responsible for establishing and administering oppressive practices in a society. But they may be highly significant in getting the day-to-day affairs of the society to run smoothly. And having the government run smoothly is often crucial for the lives of people in a society, especially those who are most vulnerable. Disruption of government services at a time when life is still fragile in the aftermath of war or mass atrocity makes it harder for people to think positively about their society and especially about those who were complicit in wrongdoing. Disruption of services is not likely to add anything to reconciliation efforts and instead negatively to impact such efforts. In societies that do have sufficient replacements for the officials and bureaucrats who are let go, lustration can achieve some of the desired effects of reconciliation in a similar way to how criminal trials make it clear that people will be held accountable for their roles in mass wrongdoing either during aggressive war or mass atrocity. Those who abuse their power and trust should generally be sanctioned as a way to indicate that people cannot act with impunity. But, as I also argue, there are important

Reconciliation of warring parties

101

countervailing considerations where it is risked that people will become antagonized by such sanctions. The jus post bellum principles of reconciliation are controversial because they do not resemble anything else in the Just War tradition. The other principles that call for reparations or rebuilding are much closer to traditional Just War principles, and this is true especially of jus post bellum proportionality. But as those who have defended and designed truth commissions will attest, reconciliation is often the most significant element in attaining a post war situation of a just and lasting peace. I have been arguing that the best way for this to occur is to have principles of reconciliation that stress human rights and mutual respect. Indeed, as we will see in other chapters, reconciliation is not an outlier but sets the tone for how to think of the other just post bellum principles. 5.6   obj e c t ions The first objection to consider is the most difficult challenge to what I have set out. Even on my construal, reconciliation is such an amorphous normative principle that it is unlikely to be instantiated in a system of rules of jus post bellum reconstruction. These rules, like all rules, will have to be of the sort that can be formulated in a way that people can understand and conform their behavior toward. Treating people as equals and not unduly angering people are not the sorts of provisions that are subject to precise rule making. Indeed, the idea of reconciliation admits of so many formulations that it is hard to know when one would conform to it and when not, unlike principles of retribution, rebuilding, restitution, and reparations. This objection goes to the heart of my project to sketch and defend jus post bellum normative principles. As I indicated above it is often not completely clear what will count as reconciliation – it can be the cessation of fighting, but it normally means more than this, including reaching a point of mutual and equal basic respect. The difficulty, and it is a real difficulty, is to tell when a State or society is conforming to this principle, rather than merely achieving a modus vivendi. If this question cannot be satisfactorily answered, then perhaps it is correct to challenge whether reconciliation can be a principle of jus post bellum. In constructing an answer here, I want first to point out that in chapter 1 I explained that normative principles of jus post bellum most closely resemble the desiderata that Lon Fuller promulgated as conditions of the rule of law. Desiderata are conditions that it would be very good to meet,

102

R e c onc i l i at ion

but it is not necessary to meet them to the fullest extent in order to satisfy them nonetheless. All of the desiderata need to be satisfied to a certain extent, but it is not even possible in many cases that all of the conditions are satisfied to the fullest extent. Fuller described the conditions of the rule of law as desiderata in order to indicate the looseness of these conditions: they are not individually sufficient, and the way that they are necessary is nonstandard. They are more than just rules of thumb, but they lack the precision to be considered standard necessary or sufficient conditions. Reconciliation is an extremely important jus post bellum normative principle since without it being satisfied wars and mass atrocities are far more likely to emerge again in a particular region. But how much reconciliation is needed to thwart future wars or atrocities varies quite a bit from context to context. And how extensive mutual respect must be thus cannot be formulated precisely. But that does not prevent the articulation of normative principles such as the two listed earlier, even if they cannot be formulated with the kind of precision that several of the other principles have. Reconciliation is thus more like proportionality than the other four jus post bellum normative principles, although this does not mean it is any less important. The second objection to consider is that I have failed to understand that it is a just peace not a mere peace that is the moral goal of war. By trying to get people to see each other as deserving equal basic respect, even though they are generally not in an equal moral position at the end of a war or mass atrocity, I undermine the possibility of a just peace. Especially in cases of mass atrocity, merely moving on in harmony cannot be considered to be a situation of just peace. Indeed, my attempts to limit restitution efforts so as to gain reconciliation are nearly guaranteed to mean that not only is a just peace not possible but States will be encouraged to pursue an unjust aggressive war, or a war conducted by unjust means since they know they will see no disadvantages to these courses of action at the end of war. My response to this objection is to point out that there are two competing goals here: deterrence and reconciliation. So, it is not enough merely to say that deterrence will not be affected. In addition, there are other jus post bellum goals than reconciliation at the end of war. In this context one of the other principles is retribution, which in most cases will have as a secondary effect at least that some deterrence occurs. As I argued in earlier chapters, the principle of retribution is meant to make sure that the peace that is reached is a just peace. Reconciliation is about the peace itself, and

Reconciliation of warring parties

103

it is a mistake to make reconciliation do more than it is likely to be able to achieve. Seeing each person as deserving of equal basic respect is needed, especially if there is also an attempt to make those on both sides who have clearly done wrong pay for what they have done. A related third objection is that I have set the stage for thinking of soldiers not as responsible agents but as automatons, merely doing what is their State’s bidding. Seeing people as deserving of equal basic respect after war ends diminishes the importance of the differences in what these people have done during war. It is as if I were to argue that it is equally acceptable for some to be war criminals and others not to be. Such lack of recognition of what people have done in the past denies their status as moral agents in a way that undermines the importance of moral agency and autonomy. Again, I am not arguing that soldiers who commit wrongdoing should not be prosecuted in most cases as a matter of jus post bellum. As a matter of jus in bello, soldiers should be prosecuted in most cases when they violate the rules of war. What I was objecting to was prosecuting or blaming soldiers who follow the rules of war but nonetheless fight on the unjust side of a war. While ignoring this last fact may relieve soldiers of responsibility, it is not because they are treated as automatons. Being lenient about jus ad bellum issues, while still holding soldiers to jus in bello standards, is indeed to be justified by jus post bellum principles. But this hardly constitutes treating soldiers as less than responsible agents. Instead, in treating all soldiers, as well as civilians, as deserving of equal moral respect, just the opposite is achieved – where all are seen as responsible moral agents. A fourth objection is that I have elevated the idea that people are not to be antagonized to too great a height, especially since the past conduct of these people may make them deserving of antagonistic treatment. As many feminist critics have pointed out, it is not wrong to express anger or rage at especially significant wrongdoing. If one tempers one’s outrage in order to appease the wrongdoer, one runs the risk of sending a message of tacit approval of what the wrongdoer has done. Reconciliation should not be construed so as to give such tacit acceptance of wrongdoing. While it is important to look to the future, one should also look to the past. Diminishing the negative reactive attitudes toward true wrongdoing in the past is a serious mistake. This criticism is indeed apt. It is true that I have construed jus post bellum principles generally, and reconciliation in particular, as principles that urge the avoidance of antagonisms that have so punctuated wars or mass atrocities. In this sense, I have elevated considerations of moving

104

R e c onc i l i at ion

forward over considerations of judging the past. But I have also not abandoned the judging of the past, as I have said, since I count both retribution and restitution as important jus post bellum principles. Both of these principles look to the past. In addition, I will argue that reparation is also one of the most important of jus post bellum principles.15 Reparation looks to the past, although it does so in a way that also looks to the future, as is true of the metaphor of repairing a garment. But what I have tried to do it to achieve a balance among these divergent jus post bellum principles. In calling attention to the often neglected principle of reconciliation, I have not elevated it so high that it dwarfs the backward-looking considerations of restitution, retribution, and reparations. The final objection to consider is that by talking of jus post bellum limitations on jus in bello, I have seemingly elevated one part of the Just War tradition over another, when the better strategy is to see each branch standing on its own as providing important moral guidance concerning war. Just as it is important to keep considerations of how war is initiated from considerations of how war is waged, so it is important to keep considerations of how war is ended separate from the initiation and waging of a war or other armed conflict. Setting these considerations in hierarchical order misses the point that these are quite different considerations. It has not been my intention to elevate one branch of the Just War tradition over another. When I speak of limitations that jus post bellum principles like reconciliation place on jus in bello principles, this is not meant to elevate one branch over another but to indicate that sometimes two different parts of the Just War doctrine apply to the same scenario. And when this happens, it is important to try to figure out which part of the Just War tradition should have sway. I have not investigated cases where the other branches might predominate over the jus post bellum principles, but I readily admit that there will be such cases. In a future work I hope to address some of these cases. Throughout this chapter I have argued that reconciliation is a very important jus post bellum normative principle. I have tried to give an account of this principle and to indicate how it might limit some considerations of jus in bello, especially concerning how we view returning soldiers at the end of a war. Political reconciliation is crucial for a sustained peace. And as we have seen, it is uncontroversial to say that peace has to have pride of place in considerations of war. Indeed, it is hard to think of many cases where peace is not the most important objective of war.

  See ch. 11.

15

Reconciliation of warring parties

105

Insofar as political reconciliation is intimately connected to the pursuit of peace, it should be regarded as a very important jus post bellum principle. In the next chapter we will see how controversial and also how important reconciliation can be when we consider the central place of the rule of law in achieving a just peace. And in the following chapter we will see the controversy in light of humanitarian intervention, what is now referred to as the responsibility to protect those who are victimized by their governments or by outside powers. One of the controversies is that stopping violence so that peace can be pursued often involves jeopardizing the rights of soldiers to live in a just and lasting peace.

ch apter 6

Reconciliation and the rule of law

Reconciliation of the sort described in the previous chapter is rarely discussed in terms of the rule of law, or if it is so discussed it is to show the incompatibility of reconciliation and the rule of law. In discussions about the rule of law in transitional justice, whether in domestic or international contexts, the focus is normally on those who are perpetrators. The puzzle is to figure out how to get those who have been perpetrators, or those who might become so, instead to conform to the rule of law so that a just and lasting peace can be restored. But in addition to focusing on perpetrators, there should also be a strong focus on those who have been, or might become, mere bystanders to atrocities. In building or restoring the rule of law, it is the bystanders who are often overlooked, and yet it is they who play a significant role in the rule of law. Most significantly, bystanders form the bulk of a society and the rule of law can only exist where the bulk of the society has respect for law and does not acquiesce in the face of violence. For it is the bulk of the society, rather than the few who are perpetrators, or might become so, whose conformity to law is what glues a peaceful society together. In this chapter, I will build on the analysis of reconciliation in the previous chapter to argue that it is respect for procedures being fair in a society, especially among current and potential bystanders to atrocities, that is the crucial normative motivation for restoring the trust necessary for the rule of law. I will draw on the Just War tradition as well as recent work concerning the rule of law in transitional societies, especially by the legal scholar Jane Stromseth, and I will also discuss the Rwandan transitional justice process known as gacaca. Whether the rule of law has been disrupted by mass atrocities such as genocide or by aggression, similar normative issues arise about how best to restore respect for law and end cycles of violence. In the first section of this chapter I rehearse some of Stromseth’s findings as well as attempt to find a normative ground for some of her views 106

Reconciliation and the rule of law

107

that I support. In the second section I suggest some reforms of the modern trial that will make it easier to see how trials can support reconciliation rather than be opposed to reconciliation. In the third section, I look at nontraditional trials, such as the gacaca in Rwanda, for guidance about how trials can be reformed. In the fourth section I explain how trials can focus on bystanders and thereby come to instill respect for fellow citizens in war-torn societies. I end by considering several objections to the view I have here set out. 6.1  r e c onc i l i at ion a n d t h e ru l e of l aw Jane Stromseth has raised a set of questions and challenges to the idea that “accountability processes,” such as post war trials of the leaders of a war or a mass atrocity, have fully positive effects on the “domestic rule of law.”1 In this section I will summarize some of her views and indicate how I will later respond to some of her concerns, while admitting that I am generally sympathetic to her position. In later sections of this chapter, I will discuss one of the most important issues in much more detail, namely how such “accountability processes” might be able to counter the problem of bystanders who are complicit in large-scale atrocities. As I will explain, the issues that Stromseth has addressed are hugely important in understanding the rule of law “on the ground.” One of Stromseth’s worries concerns “demonstration effects.” She begins her discussion of these effects by citing their overall positive contributions: accountability proceedings can contribute to strengthening the rule of law in post-conflict societies through demonstration effects. Most tangibly and directly by removing perpetrators of atrocities from positions in which they can control and abuse others, criminal trials (and processes such as rigorous vetting) can have a cathartic impact by assuring the population that old patterns of impunity and exploitation are no longer tolerable … They aim to substantiate concretely, and to demonstrate, a norm of accountability.2

And she argues that “pursuing accountability fairly and credibly can have empowering ripple effects in a post-conflict society.”3 I agree with Stromseth here and will, in later sections, add additional reasons especially to support the idea of the importance of these 1 See Jane Stromseth, David Wippman, and Rosa Brooks, Can Might Make Rights? Building the Rule of Law after Military Interventions, NY: Cambridge University Press, 2006, p. 307. 2 Ibid., pp. 258–59.  3  Ibid., p. 260.

108

R e c onc i l i at ion

empowering ripple effects on bystanders to atrocities. The ripple effects that I will focus on are those that have a direct bearing on bystanders. In particular I am interested in how the building or rebuilding of a fair and credible system of procedural accountability, that treats all members of society as equal before the law, can have the profound ripple effect of instilling equal basic respect within a society. The rule of law is not rebuilt merely by having an accountability system in place. Rather, it seems to me, specific groups in the population must see the accountability in some sense instilling respect for their fellow citizens, or instilling trust that would make people more prone to reconciliation than they were before. Stromseth rightly points out that in some cases trials have actually increased tensions in the society: With a few notable exceptions, a disturbing pattern has emerged with members of each of the three ethnic groups [in Bosnia] engaged in attempts to arrest, prosecute, and punish for war crimes members of their rival ethnic groups, who often are still viewed as heroes by their respective communities … Rather than promoting healing and confidence-building among the parties, trials often end up exacerbating divisions and mutual suspicion.4

In addition she argues that in places like Rwanda, the high-profile trials in Arusha have not had consistently positive effects. “For many Rwandans, moreover, the individuals who directly committed atrocities in front of their own eyes matter as much as the distant architects of the genocide.”5 When only the leaders are prosecuted in Arusha by the International Criminal Tribunal for Rwanda (ICTR) the “demonstration effects” are diminished. As a result, Rwandans are generally displeased with the ICTR’s criminal trials in Arusha. Stromseth has put her finger on several important worries about the uses of criminal trials as vehicles of public accountability. But in addition we need an analysis of how such failings made the reinstatement of the rule of law more difficult. I am interested not just in the abuses we have seen in various international trials, but also in what ideally trials can become. It is curious that Stromseth looks primarily at the high-profile trials in Arusha and The Hague, on the one hand, and truth and reconciliation processes on the other, but does not spend much time on mixed models of localized trials such as the gacaca in Rwanda. I will spend time doing just this, but in doing so I am as interested in their potential as I am in the actual functioning, and abuses, of these courts. 4 Ibid., p. 267. 

  Ibid., p. 271.

5

Reconciliation and the rule of law

109

The other way that trials can have a positive effect, according to Stromseth, is in their “capacity-building effects”: Accountability proceedings cannot simply be an “aside” – standing totally apart from ordinary and ongoing processes of reform. Instead, over time, accountability norms – the condemnation of brutal atrocities, the importance of fair proceedings for determining responsibility, and the need for effective and impartial procedures for resolving future disputes more generally – must become embedded in domestic practices.6

The idea of locally embedding accountability proceedings is indeed crucial to rule of law issues, but we need a framework to allow us to see what these conceptual connections are. Stromseth talks of outreach programs and other efforts to disseminate the results of the high-profile trials to the people living far away from the site of these trials in The Hague. Sometimes high-profile international criminal trials can have a positive effect on rebuilding domestic criminal processes devastated by war and atrocity, especially when the local judiciary has been targeted or dismantled by invading armies or by insurgent movements bent on creating havoc in these societies. But the analysis of the failures she discusses is hard to assess since we lack a conceptual framework for understanding the rule of law and its relationship to such failures at the local level. Stromseth argues that international criminal proceedings are sometimes so expensive that they often drain resources from domestic judicial proceedings and hence retard rather than advance the likelihood of “capacity-building effects.” She argues that local and hybrid proceedings stand a much better chance of advancing the goal of capacity building, but that too often the international tribunals hold their proceedings far away from the site of the atrocities and the proceedings are conducted in a way that does not address the root of the local problems or even speak to the local populations in their own languages. And in this I am in complete agreement with Stromseth. Jane Stromseth focuses almost exclusively on public outreach campaigns of those who are running the high-profile trials. But it seems to me that for capacity to be built on the ground it is primarily in the holding of palpably fair trials at the local level. Mere public-relations campaigns for the high-profile trials, which are generally held in distant places, cannot have the kind of effects Stromseth advocates. Stromseth does say that “criminal trials, alone, even with ambitious outreach programs, are – at

6

  Ibid., p. 261.

110

R e c onc i l i at ion

best  – only part of what is needed to grapple with past atrocities or to build local capacity for justice.”7 Indeed, this is the view that has been taken by several important figures in the Just War tradition. In what follows I will build on Stromseth’s analysis and concerns, as well as go back to theoretical considerations that motivated her original concerns. I will try to provide the conceptual and normative support for a position that begins to indicate how trials can be reformed. In particular I seek a type of trial that will have a causal impact on diminishing the likelihood of atrocities happening in the future, and increasing the likelihood that the society can heal. Here the key will be restoring respect for the rule of law. It is the restoration of respect that will be absolutely central in the creation of reconciliation between previously warring sides. 6.2  r e f or m i ng c r i m i n a l t r i a l s i n l ig h t of j u s p o s t b e l l u m Criminal trials are part of an international system of institutions that are generally aimed at promoting the rule of law. In chapter 2, I argued for the following jus post bellum normative principle: There is an obligation to engage in actions to support institutions that promote the international rule of law, as long as such actions do not jeopardize basic human rights.

But not all criminal trials, especially international criminal trials, satisfy the contingent condition at the end of this principle concerning human rights protection. One major difficulty is that sometimes criminal trials do not instill respect for the rule of law, and actually increase the likelihood of violence. In this section I will argue that one way to reform criminal trials so that this does not happen is to take seriously the need to inform people on the ground of the point of the trials and how these trials can help the people begin the process of healing after a war or mass atrocity ends. This normative principle grounds jus post bellum reconstruction and rebuilding on the basis of increasing respect and protection of human rights. When States participate in just institutions, there is a greater likelihood that human rights will be protected as one part of a regime of the rule of law. But there are also occasions when human rights protection or respect is diminished by the holding of trials. And then the underlying

  Ibid., p. 308.

7

Reconciliation and the rule of law

111

support for the trials, also grounded in human rights, can be significantly undercut. So, trials should occur only when these trials hold out the likelihood of enhancing human rights protection and respect. One difficult issue is that certain trials, especially ones that are based on the adversarial model of adjudication, seem to heighten tensions between groups in a society rather than diminish these tensions in a way that would help with reconciliation. There are ways to diminish the heightening of tensions, especially by diminishing the adversarial character of trials and by involving more of the members of a society in the trial process, as well as holding the trials in situ so that it is possible for people to attend and see the workings of the court as something that is in their ultimate best interests. Indeed, this latter point has been the subject of intense debate. At the moment international courts do not generally sit where war or atrocity has occurred, but are more likely to be in supposedly neutral sites such as The Hague in Holland. Another problem is that trials generally aim at legal justice rather than truth and hence can be quite a disappointment for the victims’ families as well as for the continuing peace process in a given society. In seeking closure, the families of victims hope for the truth to emerge from the trial process. But trials are mainly focused on providing fairness to those who are accused, rather than providing anything specific to help grieving victims. And the kind of justice that trials normally seek is very narrowly focused on just the person who is in the dock, not those who may have aided the alleged perpetrator or those who could have prevented him from acting as he did. In rebuilding the rule of law after war or atrocity, it may not be necessary or even a good idea to hold traditional trials. One of the most important things is to get bystanders to understand what they could have, and should have, done differently – primarily what they should have done to stop the atrocity or the war. And it is my contention that trials can be reformed in such a way that bystanders play a larger role than they normally do in trials, which is to say that they will play a role where before they generally did not. Bystanders typically play a role only as witnesses to the specific acts of the person in the dock, not to the larger context of the atrocity or war and not to the role played by others and themselves. In the revised trial, there are expanded roles for bystanders that will bring out their own and other’s roles in these atrocities. Truth and reconciliation commissions (TRCs) have led the way in bringing the conflicting parties together to set the record straight and to accept the roles that people played or could have played in preventing the

112

R e c onc i l i at ion

atrocity or aggressive war. But TRCs have not often satisfied the victims and their families since perpetrators are not asked to do more than apologize or express remorse, and often they do that grudgingly in order to get the offered amnesty that has bought their cooperation. So, we can learn from how the TRCs have succeeded but we can also learn from what TRCs have failed to provide as well. The main types of reform of criminal trials that jus post bellum considerations would suggest are those that affect the status of bystanders. One of the things that have made TRCs successful is the involvement in the process of lots of people in the community where the atrocity occurred. It is my belief that part of the success of TRCs is the social dynamic that is created whereby a community dialogue is opened on the difficult subject of what were the causes of the atrocity, both what was done by specific individuals and what was not done by others. And here it is the exploration of the role of bystanders that has been so often completely neglected in trials, thus allowing TRCs to have a better chance of confronting and changing the attitudes of bystanders. Indeed, there are at least two significant ways that bringing considerations of bystanders into trials will help the reconciliation and healing process in the aftermath of war or mass atrocity. First, focusing on bystanders is a way to get the whole story about what went wrong in the lead-up to a mass atrocity or aggressive war. Trials normally focus on the single perpetrator, or a very small group of perpetrators as in a conspiracy, who committed a serious wrong such as killing or raping. Yet, this is almost always only a part of the whole story about what went wrong. Some people facilitated the wrong by aiding or abetting the perpetrators. Others encouraged, or did not discourage, the perpetrators. Still others stood by and did nothing.8 In this last category, the perpetrators may have wrongly taken comfort in the inaction of the bystanders. Or, more simply, these inactive bystanders could have intervened and made a difference by stopping or threatening the perpetrators. In some cases, just being present and not looking the other way could have made a difference. In all these cases, getting the whole story about the causes of the mass atrocity or war requires attention to the bystanders as well as the direct perpetrators. Second, in order to get a proper dialogue begun about how the society can begin to come together again and heal, bringing the bystanders into 8 See Larry May, “Complicity and the Rwanda Genocide,” Res Publica, vol. 16, no. 1, March 2010, pp. 135–52.

Reconciliation and the rule of law

113

the dialogue is crucial. When bystanders are left out of this dialogue, they don’t see themselves as having done anything to contribute to the past problems or as having an active role in what to do in the future. More importantly, bystanders need to have a sense that their active involvement in the society, especially in times of crisis, is crucial for providing a continuing support for the rule of law. The rule of law requires not sitting by passively while some members of society are singled out for abuse and disrespect. Rebuilding respect for the rule of law means rebuilding respect for people within the society covered by the system of law. And of course respect for persons means respect for their rights, especially their rights to life and liberty. When a fellow neighbor, or citizen, is being threatened, respect for that person involves taking at least minimal steps (that do not unduly jeopardize one’s own life or liberty) to go to that person’s aid. If those steps have not been taken in the immediate past, the rule of law, especially the equal protection of the law, has been undermined and needs to be rebuilt. As a first step, those who failed to go to the aid of their neighbors and fellow citizens need to confront their omissions. While it is arguably more important that the perpetrators are made to confront their commissions, the omissions of bystanders also need to be confronted. TRCs sometimes have been effective at this role, and it is my belief that trials can be too, as we will see when we next investigate some recent nontraditional trials, especially the gacaca trials in Rwanda. 6.3  non t r a di t ion a l t r i a l s One recent effort at reforming the traditional trial to make it more likely to aid in post war reconciliation is the gacaca process in Rwanda. In this section I will briefly describe this process and also critically analyze it as a model for nontraditional forms of retributive trials after war that aim, as is true of TRCs, at reconciliation. In general, nontraditional forms of trial seem to work best when they incorporate aspects of such processes as TRCs in trying to bring victims and perpetrators, as well as bystanders, together to discuss what went wrong and what can be done differently in the future. In addition, because nontraditional trials are less adversarial than traditional trials, previous antagonism among parties is not exacerbated. In Rwanda after the genocide of 1994 and the near civil war that erupted, there was a special problem that needed to be solved concerning the use

114

R e c onc i l i at ion

of trials for the perpetrators of the extensive violence – where nearly onethird of the society was killed and nearly one-third of the society were the perpetrators, with the other third of the society as bystanders. Much of the violence was directed at the members of the middle class of Tutsis who were in prominent positions throughout the various layers of government in Rwanda. And this meant that the members of the judiciary were often targeted, leaving the country without its previously functioning legal system. In addition, there were tens of thousands of alleged perpetrators who had been arrested and were awaiting trial, often in makeshift jails, such as soccer stadiums, for a year or longer. There was a humanitarian crisis that needed to be dealt with concerning these alleged perpetrators. And the international tribunal that was set up to deal with the leaders of the genocide, established across the border in Arusha, Tanzania, could only handle a very small fraction of these legal cases. So, Rwandan authorities came up with the idea of adapting a traditional tribal form of dispute resolution, gacaca (literally “trials in the grass”) to try to deal with the many cases that were not otherwise being heard by the crippled judiciary and so that the society could begin to heal. Tribal elders from each village in Rwanda were given rudimentary training in trial procedures and rules of evidence and then given the charge of trying local perpetrators before the village in a public forum. The villagers were the ones to vote on whether the defendants were guilty and what form of sentence the punishment should take. What the gacaca sought to explain and counter was what Scott Straus has described as the “law” of the attacks. Straus says that to understand why the perpetrators felt that their “participation in the genocide was both authorized and obligatory” certain facts need to be recalled that he had established earlier in his important book: Recall how the perpetrators described how authorities and bands of men would travel from house to house, demanding that an adult male from each house join the attacks. Recall how the most active perpetrators readily acknowledged that they expected and demanded – under penalty of death, they said – Hutu men to participate. In fact, intra-Hutu pressure was the most common reason respondents gave for their participation … Attacking Tutsis was like a “law” – and disobedience, claimed both those pressuring and those being pressured, would have carried a heavy price.9

9 Scott Straus, The Order of Genocide: Race, Power, and War in Rwanda, Ithaca, NY: Cornell University Press, 2006, p. 219.

Reconciliation and the rule of law

115

To rebuild the rule of law, one had first to undermine the “law” of the attacks. The gacaca process was set up to do just this. To rebuild the rule of law in Rwanda required that a “law” of the jungle be confronted, and that those most responsible for it be punished, even if the sentences were not terribly severe. But confronting this “law” also required that people come to understand how the law of the jungle could have come to replace the rule of law, and what they could have, and should have, done to stop it. After the war and mass atrocity was over a trial was needed not so much to identify who did it, but to explain how the rule of law had been so easily overturned and replaced. To do this, thousands of “trials in the grass” needed to be held. And all of the participants, those who followed the “law” of attacks and those who made it so easy for this law to dominate over the rule of law, needed to be confronted and confront each other. Scott Straus seemingly disagrees with what I set out above when he has the following concluding thoughts based on his 200 interviews with perpetrators of the Rwandan genocide: My findings suggest that maximal justice [of the gacaca trials] is not the most appropriate system to account for Rwanda’s genocide. Even though many people took part in the genocide, they often did so because of direct statebacked pressure and because they were scared. Maximum justice is not a good fit with this reality. Meaningful accountability should focus on prosecuting the national and local leaders who used their authority and power to order and legitimize killings as well as on those thugs who did the lion’s share of killing and mobilization.10

Strauss sees the gacaca trials as mainly about punishing the small fry who mostly were the perpetrators. But he misses the crucial role that gacaca trials have had in post war reconciliation especially by focusing not only on the “thugs” but also on the bystanders. Most international legal theorists tend to focus on the past, and on what is the best way to provide retribution to those who have caused harm. Sometimes they also focus on deterrence as they try to figure out what can be done now so that perpetrators are deterred from committing similar acts of violence in the future. But they rarely focus on the jus post bellum normative principles, especially reconciliation, that I have been addressing. Trials are generally not understood as advancing such goals, indeed not as advancing jus post bellum goals at all. I believe that this is a

10

  Ibid., pp. 244–45.

116

R e c onc i l i at ion

mistake, especially as the various parts of the Just War tradition come to be seen as related not distant from each other. Straus does make a point that I am completely sympathetic with. He argues that genocides tend to take place within a context where there is already an ongoing war. He contends that we should focus on these contexts, and try to prevent them, as a first line of defense for preventing atrocities. As he says, “war does change people. So does coercive social pressure.”11 He thinks that we will make better progress focusing on those State leaders who can prevent war and offset the social pressure to engage in mass atrocity, than on the small fry who are the direct perpetrators of the violence. I agree that high-profile criminal trials with stiff potential sentences should indeed focus on these State leaders. But I think there is a significant, and largely underappreciated, role for smaller-scale, and local, trials in rebuilding the rule of law in these societies. Generally, I am cautiously optimistic about the gacaca trials occurring all across Rwanda. I do not see these trials as replacements for the International Criminal Tribunal for Rwanda trials of the Rwandan leaders occurring in Arusha, but as an important supplement to them. I worry about the diminished rights of the accused and the lack of judicial training for both judges and jury members in the gacaca trials. But my worries are considerably lessened given that the penalties meted out by the gacaca courts have been relatively minor infringements on the liberty of those that have been convicted. On some accounts of the trials, the defendants have been urged to speak not just about what they did but also about what others did in the community. And there has sometimes been quite a healthy discussion about what each person could have done differently to stop or prevent the killing of neighbor by neighbor which accounted for the majority of the killings in Rwanda, and which made it possible for the killing of so many to be accomplished so quickly. In Rwanda, what has been needed is a rebuilding of the rule of law. Such a rebuilding begins by getting people to stop employing violence to settle disputes and to turn back to the legal institutions as a way to resolve their disputes. Obviously, to rebuild the rule of law means that one not target members of the judiciary for assassination. More subtly, though, it also means that those who do the targeting do not get support, materially or morally, from the rest of the community, as also seemingly happened in the lead-up to the violence in Rwanda in 1994. And here is the crucial role of bystanders that the gacaca trials tried to address by having the

  Ibid., p. 246.

11

Reconciliation and the rule of law

117

trials “in the grass,” that is in situ and among the community. Holding trials in situ has the strong advantage of allowing many more people to witness and participate in the trial than when the trials are held in distant locales, and ultimately this will aid in reaching reconciliation. But the reason that TRCs were not held in Rwanda is that there were many perpetrators, as well as those who aided and abetted, who needed to be held accountable and not escape the commissions of their grotesque misdeeds with impunity. The stories like those from the South African TRC, where the family of Steve Biko objected to the amnesty since they felt they were owed retribution for those well-known as murderers of their relative, had an effect. So, the Rwandan leaders settled on a dispute resolution model that was a trial, rather than a TRC, but not a traditional trial. The gacaca trials ended up being a mixture of elements from traditional criminal trials and TRC proceedings. And it was important that they had as their base an old tribal dispute resolution system, so that people could identify with it and, unlike traditional criminal trials, feel free to come out and participate in the proceedings. Other forms of traditional justice have also been used in transitional or jus post bellum contexts. To return to an idea well-described by Jane Stromseth, what is needed is capacity building for there to be a return to the rule of law. Stromseth claims that East Timor’s Commission for Reception, Truth and Reconciliation (CAVR), for instance, may “ultimately have greater domestic impact” than the high-profile hybrid criminal ­tribunal set up to prosecute the leaders of the mass atrocity in East Timor.12 Amnesty was given to the individuals who came before the CAVR, but they also had to register publicly so that there was some mild form of public censure, making the CAVR, like the gacaca, a mix of TRCs and traditional trials. 6. 4  i ns t i l l i ng r e spe c t f or pe r s ons a n d l aw When people have equal basic respect for their fellow members of society, and see that they will in turn receive respect from others, a society is well-situated to conform to the rule of law rather than to continued violence and political struggle. In this respect, bystanders play two very important roles in building or rebuilding the rule of law. First, examining and criticizing the role of bystanders can signal that members of a society are respected when they come to the aid of their compatriots

  Stromseth et al., Can Might Make Rights?, p. 285.

12

118

R e c onc i l i at ion

who are in danger. Second, when bystanders who do not aid their ­compatriots are criticized, morally or legally, for their failures, the rule of law is also strengthened by this additional showing of respect for those who were in danger. The rule of law is built, or rebuilt, on the backs of such demonstration that each member of the society is respected and is in this sense equal before the law. And if members of the society are singled out for harm in the future, there is also a signal that their compatriots will come to their aid rather than allow them to be subject to harmful treatment. The rule of law is built on the basis of equality before the law and also on the basis of considerations of equity. For both equality and equity, basic respect for each person who is a member of society is the key. Equality before the law is premised on the idea that legally no one, and especially no minority group, will be treated as second-class citizens, and most especially that no one will be subject to danger and risk of harm merely for being a member of a minority group within a society. To ensure that the rule of law is maintained, bystanders must speak up, or take action, to confront those who show disrespect for members of minority groups and other disaffected members of society. Equity means that minimal justice must be secured for each person in the society. It is not enough that all are treated equally, if that means that all are treated badly. Arbitrary and capricious treatment, especially concerning being subject to undeserved harm or the risk of harm, must not be part of what it means to follow the rule of law. This is in part what Fuller meant by procedural natural law and also in part what Hart alluded to as the minimal content of the natural law.13 And again, bystanders can play a very important role in not acquiescing in a regime that fails to provide for minimal justice within a society. One of the most important ways that this can be accomplished is by supporting legal institutions, judges, and lawyers who act as a check against arbitrary and capricious actions of those in the executive branch of government. When there is equality before the law, and minimal justice, in a society then equal basic respect for people as well as respect for law is secured in that society. The rule of law cannot be built or sustained merely by having procedures and institutions, although this is very important for the rule of law. In addition, the bulk of the people must support the idea of the guiding ideas of the rule of law. Jane Stromseth has shown that there must be 13 See Larry May, “International Law and the Inner Morality of Law,” in Peter Cane (ed.), The Hart/Fuller Debates: 50 Years Later, Oxford: Hart Publishing Co., 2009.

Reconciliation and the rule of law

119

capacity building as well. And I have similarly stressed that if the bulk of the society merely stands by and lets the government or majority groups trample on the rights of minorities in a way that undermines equality or equity considerations, merely having good procedures in place will not guarantee the rule of law. But having procedures in place may work to inspire bystanders not to acquiesce in this manner. And hence there is a sense in which the having of good procedures, that are recognized as fair, both supports the rule of law directly and also indirectly by encouraging bystanders to respect people and laws in their society. In earlier sections of this chapter I have argued that there are various forms of trial that can satisfy the rule of law, and that some forms are able to help in the rebuilding of the capacity for the rule of law. I singled out the gacaca trials in Rwanda as one such noble experiment in reworking the traditional trial. What is crucial is that bystanders in the society could come to see that there is a need, and what specifically is needed in order, to stop genocides and other mass atrocities within their societies. In this way, Rwandans came to see one of the crucial components of the rule of law – that everyone deserves to have a forum where justice can be meted out after a wrong has been done. The forum can take a variety of forms as long as equal basic respect is instilled. Some have argued that the gacaca courts have failed, or are likely to fail, precisely because they have not provided fair proceedings. There have been reports that bribing of gacaca judges has occurred, and that intimidation, or even killing, of witnesses has also occurred.14 Insofar as this is true, then my tentative support for the actual gacaca process would have to be withdrawn or at least qualified. But the idea of having localized trials that respect all parties and that try to bridge the gap between justice and reconciliation is still worth pursuing, and may be one of the only ways to rekindle the rule of law in such societies as that of Rwanda. I have argued in this chapter that the rule of law can be built or rebuilt with the institution of fair procedures and when bystanders in the society see these procedures as deserving of their respect. Merely having domestic or international trials for the perpetrators of atrocities that have destroyed or waylaid the rule of law is not sufficient but is often a necessary ingredient in a return to the rule of law. From the time of Magna Carta, through the seminal writings of Hugo Grotius and William Blackstone, fair procedures have been seen as the key ingredient in 14 See Christopher J. Le Mon, “Rwanda’s Troubled Gacaca Courts,” Human Rights Briefs, vol. 14, no. 2, Winter 2007, pp. 16–20.

120

R e c onc i l i at ion

instilling respect for law. Today, we have seen that instilling this respect for law is also dependent on fair procedures. But we have in addition seen that bystanders must recognize their legal procedures as deserving of respect and must then not acquiesce in their abridgment. We should focus on fair trials, but we should do so commensurately with what sort of penalties are at stake. Criminal trials, both at the domestic and international level, can play a significant role in building or rebuilding the rule of law in war-torn or atrocity-ravaged societies. Domestic trials that are locally focused and run by community leaders, can play a significant role even in spite of not conforming to the highest standards of fairness. And this is because of the ability of these trials to deal not only with perpetrators but also with bystanders. Bystanders must come to see that they are empowered to make such a difference in their societies, especially in going to the aid of their compatriots who are in need, so that respect for persons can breed respect for law. Only when bystanders and others in the society restore respect for one another will it be possible for reconciliation to occur after war has ended. Rebuilding the rule of law and achieving meaningful political reconciliation go hand in hand. I will next consider some objections to the view I have defended. 6.5   obj e c t ions The first objection to consider is that reconciliation and the rule of law fit less easily together than I have indicated. The rule of law calls, among other things, for all people similarly situated to be treated alike. But such equality of treatment may run afoul of the need to treat some members of the society unequally in order to encourage those individuals not to engage in violence. Indeed, the idea that wrongdoers could get amnesty, discussed in the last chapter, is the kind of thing that often is necessary for reconciliation but which also seems to run afoul of the most basic ideas of the rule of law. Sometimes the rule of law and reconciliation run together easily, but, according to this objection, that is surely not the norm. I have tried to provide an account of the rule of law that stresses the ways in which it can be consistent with reconciliation. But it is certainly true that some aspects of the rule of law do not fit well with reconciliation, especially if unequal arrangements need to be made for some people in order to minimize violence. And while I admit this

Reconciliation and the rule of law

121

point, I would also say that we should not reach so far for reconciliation that the peace that is achieved is not a just peace. As far as what the norm is, I believe that the rule of law can be cast in such a way that is generally consistent with the goals of reconciliation. Both the rule of law and reconciliation are at their most basic strongly connected to the idea that each member of the society should be given equal basic respect. A second objection is that I am asking too much of trials, even nontraditional trials. Indeed, in some of my other work I have argued that it is a mistake to expect trials to do more than the retributive and deterrent functions that have been the hallmark of trials for centuries. And asking trials to do more than what they traditionally have been good at is to risk not having them be especially good at any of the multiple tasks they are trying to fulfill, such as truth as well as retribution, to say nothing of adding in that respect for the rule of law and also of reconciliation are to be accomplished. Trials operate best with very limited goals, and those goals should be ones that are well-suited to the way trials have been recognized over the centuries. I am sensitive to the idea that we should not expect too much of trials. But I believe that we can add a measure of reconciliation to what trials are traditionally good at achieving. The aspect of reconciliation that I have been focusing on is that of attaining mutual respect among the members of a war-torn society. I have indicated that this goal is often hard to achieve in traditional trials where the parties are often mutually antagonistic. But there are several models of nontraditional trials that are sometimes able to satisfy the goals of retribution and also reconciliation. These two important principles of the jus post bellum can be consistently advanced. A third objection is that I have put too much emphasis on changing people rather than changing the circumstances within which those people act. Trials are guilt-based mechanisms that operate by trying to change people’s behavior by changing the character of these people. Some recent work in social psychology has challenged the efficacy of attempts to change behavior by changing the character or world view of individual people. Instead, changing the circumstances and context that gave rise to people’s wrongful behavior is more likely to have an effect on the likelihood that genocides will occur. Especially in the case of increasing “helping behavior” of bystanders, guilt-based efforts will not likely have much of an effect.

122

R e c onc i l i at ion

This objection relies on a recent trend to apply the results of staged one-person experiments to the behavior of people who play a role in mass violence. The jury is still out about whether the one-person social psychology cases do provide good predictions about mass violence cases. And in any event, it seems highly unlikely that people are unaffected by trials, whose efficacy has been substantiated by criminal cases going back at least to the recounting of the trial of Orestes for the murder of his mother, Clytaemestra, in Athenian Greece.15 It is much more plausible to think that it will take changes in both dispositions and circumstances in order to have an effect on the incidence of mass violence. My proposal about reforming trials to achieve reconciliation should not be understood to be the whole story. Finally, there is the objection that I have exaggerated the role of bystanders in preventing war and atrocity. In the Rwandan genocide, the perpetrators were forced to act, in many cases, by the threats coming from government agents. Bystanders couldn’t have done much to stop these threats. What was needed instead was to focus on the government agents, and the gacaca process was not well-placed to deter these officials from threatening the populace who took up arms against their neighbors. Indeed, the nontraditional trials are not well-suited for trying the State leaders and government officials who have played the largest roles in mass atrocities and wars of aggression over the years. I agree that nontraditional trials are not well-suited for the ring-leaders of mass atrocities and wars of aggression. But I disagree that these are always the most important players in such events. Bystanders are a vastly underappreciated contributor to such situations. And in any event there is no reason not to have trials of a traditional sort for the ring-leaders and trials of a nontraditional sort for the others. Whether one thinks that I have exaggerated the role of bystanders or not, and increasingly this is recognized as important in cases of mass atrocity, this is no reason to reject my proposal about using trials, especially nontraditional trials, as a means to achieve reconciliation in war-torn societies. The conception of reconciliation provided in the previous chapter, with its focus on human rights issues, especially equality of basic respect, has allowed us to see the interplay of reconciliation and retribution in ways that do not pit these principles at odds with each other. There certainly 15 See Aeschylus, Eumenides, ed. and trans. Alan H. Sommerstein, Loeb Classic Library, Cambridge, MA: Harvard University Press, 2008.

Reconciliation and the rule of law

123

will be conflicts among the jus post bellum normative principles. But it is my view that many of these conflicts will be minor rather than major ones. In the next chapter I take on one of the conflicts that has been neglected over the years, namely the conflict between protecting the lives of those in foreign countries who are suffering the effects of mass atrocity or war versus protecting the lives of one’s own citizens, especially the lives of soldiers who are asked to sacrifice their lives for humanitarian missions overseas.

ch apter 7

Conflicting responsibilities to protect human rights

There are two conflicting goals of the emerging Responsibility to Protect doctrine. The first is that States have the responsibility to protect their own citizens from human rights abuses either domestically or internationally. The second is that States have a responsibility to aid other States in developing the capacity to protect their own citizens from human rights abuses. While it does not appear that these goals conflict, I will argue that in some cases they do, or that they could do so. The most basic reason for this, as this chapter will attempt to show, is that States have scarce resources available for human rights protection. Most dramatically, if a State has the responsibility to wage war to aid a weak State in defending itself from aggression, then to do so it may be required to jeopardize the protection of the human rights of its own citizens, most especially those who would be called into military service to protect the rights of those in other States, or those who would otherwise get welfare assistance from their own State. I will argue that a State’s soldiers and other citizens have human rights that may, and sometimes should, be taken into account in deciding whether to wage humanitarian war. I do not argue that the lives of soldiers are an overriding concern, but only that they should count. And if they do, there is a generally unrecognized conflict of responsibilities concerning human rights. Especially in debates about human rights, the lives and basic human rights of soldiers should not be discounted. This issue sits at the intersection of the set of concerns that reconciliation addresses and the set of concerns that involve rebuilding, especially the part of the Responsibility to Protect that concerns rebuilding. As we saw in the previous chapters, how returning troops are viewed was one of the key considerations in achieving reconciliation after war ends. People will not come to respect the rule of law if they believe that their sons and daughters have been sacrificed unnecessarily, or where the lives of their fellow citizens were disvalued vis-à-vis the lives of foreign nationals. Such considerations will haunt the jus post bellum reflections and make reconciliation 124

Responsibility to protect human rights

125

and rebuilding efforts all that much harder. The Responsibility to Protect is a noble doctrine but in its practical effects there are problems and conflicts that need to be given more attention than they have so far. The Responsibility to Protect doctrine has cosmopolitan ambitions but is locked in a world where States are still the dominant actors. Human rights are treated as rights that people have by virtue of being members of the world community, and States are assigned responsibilities to protect those rights. But States also continue to have strong special responsibilities to their own citizens. In a world of States, the responsibility to protect one’s nationals is supreme; but in a cosmopolitan order the rights of a State’s nationals do not have priority. In this sense, the special responsibility to one’s nationals seems to conflict with the international community’s general responsibility to its members, namely all humans. In this chapter I will explore this conflict in several different ways, especially as it relates to the emerging Responsibility to Protect doctrine. The structure of this chapter is as follows. First, I will discuss some of the relevant portions of the Responsibility to Protect doctrine, as well as some of the commentary on the doctrine. Second, I will indicate why the use of force to support the Responsibility to Protect can be especially problematic. Third, I will discuss the special responsibilities of States to their own nationals and indicate why in a world of States this responsibility is thought to be supreme. Fourth, I will discuss a possible way to adjudicate the conflicting responsibilities of States by reference to the doctrine of human rights itself. Finally, I will take up several objections to my proposed solution to this problem of conflicting responsibilities to protect human rights. 7.1  r e sp ons i bi l i t y t o pro t e c t a n d h u m a n r ig h t s If human rights really are equal rights that each person has by virtue of being human, and if rights have correlative duties, then it would seem that it is the whole world that has the duty or responsibility to protect human rights wherever they are abused. And if States are to be the main enforcers of human rights in the world, then it also follows that States have a duty or responsibility to protect human rights from abuse anywhere in the world that abuse occurs. As has sometimes been mentioned, this idea is essentially Lockean. Actually Locke himself held only that everyone had a right, not necessarily a duty, to punish offenders of the law of nature. Here is his most famous discussion of this point:

126

R e c onc i l i at ion

And that all men may be restrained from invading other’s rights, and from doing hurt to one another, and that the law of Nature be observed which willeth the peace and preservation of all mankind, the execution of the law of Nature is in that state put into every man’s hands, whereby every one has a right to punish transgressions of that law to such a degree as may hinder its violation.1

Yet in the previous paragraph of this work, Locke had intimated that there is also a duty or responsibility here when he said: Everyone as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind …2

And so the Lockean position is often associated with the idea that everyone has a responsibility to go to the aid of those whose rights are being violated. Today, the Lockean position is exemplified in the doctrine of the “Right to Intervene” that was popularized by the founder of Doctors Without Borders, Bernard Kouchner.3 That doctrine, as is also true of Locke’s, was aimed at establishing that States and other parties had the right to intervene to aid those whose rights were, or were about to be, abridged. But having a right of humanitarian intervention proved not to be sufficient to prod the States of the world into action to prevent massive human rights abuses. While rights generally are best understood to have correlative duties, the existence of a right does not call for any specific duty. If Locke provides the historical argument for the Right to Intervene, we must search a bit later in the history of political and legal thought for the historical argument for the Responsibility to Protect doctrine that came to replace Kouchner’s doctrine. One of the clearest, and earliest, ancestors of the Responsibility to Protect doctrine is the eighteenth-century theorist, Emir de Vattel. Vattel spoke of “offices of humanity,” the duties “which Nations mutually owe to one another.” Vattel argued for the recognition of the principle that: every Nation should give its aid to further the advancement of other Nations and save them from disaster and ruin, so far as it can do so without running too great a risk.4 1 John Locke, Two Treatises on Government (1682), ed. Peter Laslett, Cambridge University Press, 1989, Second Treatise, ch. 2, para. 7. 2 Ibid., para. 6. 3 See Gareth Evans, The Responsibility to Protect, Washington DC: Brookings Institution Press, 2008, p. 32. 4 Emir de Vattel, Le Droit des gens, ou principes de la loi naturelle (The Law of Nations or the Principles of Natural Law) (1758), trans. Charles G. Fenwick, Washington: Carnegie Institution, 1916, p. 114.

Responsibility to protect human rights

127

Specifically, Vattel spoke of a requirement that what we today call rogue States be confronted by the rest of the States of the world: But if a Nation, by its accepted principles and uniform policy, shows clearly that it is in that malicious state of mind in which no right is sacred to it, the safety of the human race requires that it be put down.5

In my view, this is the true ancestor of the Responsibility to Protect doctrine as it is emerging today, providing for an obligation of States to go to the aid of other States. As Gareth Evans, one of the founders of the Responsibility to Protect doctrine, has written: The responsibility to protect embraces three specific responsibilities: A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. B. The responsibility to react: to respond to situations of compelling need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction, and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.6

Notice that the Responsibility to Protect differs from the doctrine of humanitarian intervention in that the use of force is considered a last resort. But it is also of note that the first major report on the Responsibility to Protect was issued by the International Commission on Intervention and State Sovereignty, where “intervention” was the key consideration of the report.7 The Responsibility to Protect is still highly controversial, even nearly ten years after it was first proposed amidst what was expected to be general approval in the international community. Today, many diplomats and State leaders are deeply suspicious of the Responsibility to Protect doctrine. As I have argued elsewhere, at least part of the controversy surrounding the principles of this doctrine is that war is sanctioned to protect human rights and yet war itself often involves massive violation of human rights.8 War, after all, involves the intentional taking of human 5 Ibid., p. 135. 6 Evans, The Responsibility to Protect, p. 41. 7 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, Ottawa, Canada: The International Development Research Centre, December 2001. 8 See Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008, ch. 13; and Larry May, Genocide: A Normative Account, NY: Cambridge University Press, 2010, ch. 12.

128

R e c onc i l i at ion

life. And since most soldiers are not themselves deserving of loss of life, it is a human rights violation that they are intentionally killed. If it is understood as a last resort, then its controversial aspect can be diminished, but there is still the worry that any intervention that employs State use of force could also involve human rights violations, as I will argue in the next section of this chapter. 7.2   s tat e r e sp ons i bi l i t y a n d t h e us e of f orc e As we will see, it is the call for military intervention that has proved to be the most controversial, and the most difficult normatively, of the various provisions of the Responsibility to Protect doctrine. A State’s responsibility to use military force to protect another State’s nationals raises a host of problems. And similar, although not as strong, worries arise with other means to implement the Responsibility to Protect. In the case of organized violent force, human beings, both soldiers and civilians, will be killed or harmed, and thus have their own human rights violated. In the case of nonviolent use of force, it is also highly likely that the human rights to liberty and property will be adversely affected. So, here is the problem: as a contingent matter, in order to secure the human rights of some people (non-nationals) the human rights of other people (nationals) are likely to be rendered insecure. One does not have to be a pacifist in order to see that contingently the use of violence, or other forms of force, to secure rights involves a tradeoff in that other rights are abridged. It could be argued that in a world of scarce resources, and all worlds are of that sort, the most innocent should be protected even if it means that the less innocent, and especially the guilty, will have their rights abridged. Surely, this is the rationale for incarcerating offenders and even those who merely display the tendency to be offenders. Hard choices often need to be made, and when they are made, surely it seems fair to favor the most innocent and disfavor those who are less innocent. And so even though it is true that human rights on both sides of a war will be abridged, the lives lost on the side of the aggressor should count as less than the rights of those who are on the side of the defenders. While I acknowledge the intuitive appeal of the above argument, it does not adequately resolve the problem I am addressing in this chapter. I acknowledge that trade-offs concerning rights, even human rights, are not uncommon. But it is especially problematic for one State to abridge,

Responsibility to protect human rights

129

or risk abridging, the special human rights of its own citizens so as to protect the general human rights of the citizens of another State. If it is a question of one or other person’s rights, but not both, it should be allowed that a State can choose to protect its own citizens first. Indeed, it is even worse if a State is the instrument of the abuse of rights of its own citizens, as happens when a State initiates war or other means of force that sends its citizens into harm’s way so as to protect the citizens of another State. So, the main worry is that even initiating a just humanitarian war involves putting one’s own citizens in harm’s way, jeopardizing the human rights of one’s own citizens in order to secure the protection of the human rights of noncitizens. Of course, a cosmopolitan could argue that all people’s human rights are on an equal level. And once this is acknowledged, then it is not irresponsible for a State to choose among people on the basis of innocence rather than on the basis of nationality. Indeed, to choose on the basis of nationality appears, at least prima facie, as if it is an unfair way to make such choices, since the rights in question are not a specific society’s civil rights, but human rights of all people merely because they are indeed fellow humans. Of course, if the proposed humanitarian war will harm one’s own innocent civilians, then it may be that one could prefer them to the innocent others who are non-nationals. But in the case of soldiers, especially the ones who volunteer for military service, preferring these nationals over innocent non-nationals seems to be ruled out by any doctrine that respects human rights. Since I am not a cosmopolitan, I do not necessarily find the above argument compelling. When rights protection requires a State’s resources, it does seem odd to me to disregard whether the person who is in need of protection is one of that State’s nationals. Now, I do not think that such nationalistic considerations are always overriding, but I merely want initially to argue that it is plausible that a State be allowed to give some weight to the fact of nationality of the people whose rights are put in jeopardy. And I will then advance the more controversial claim that this is true even in the case of one’s own citizen-soldiers. There has been an excellent debate recently about relational norms, such as the norm that would favor those interests associated with people with whom one is close.9 But the case of human rights is an especially difficult case in this respect. For, as I said earlier, human rights are supposed See Christopher Heath Wellman, “Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My,’ ” Ethics, vol. 110, no. 3, April 2000, pp. 537–62. 9

130

R e c onc i l i at ion

to be rights that ignore all other features of the person except his or her humanity. So, the difficult question is whether or not considerations of nationality can affect how one should respond to issues concerning conflicting responsibilities to protect human rights. I do not believe that being a fellow national should have great weight, but I believe this factor can have some weight, as I shall attempt to show. Let us start with cases where the responsibilities to protect human rights are in conflict between two groups and where there are the same rights for the same number of people, with one group being nationals and the other group not. As a tiebreaker, it is often thought to be uncontroversial that a lot of otherwise insignificant factors can be appealed to. In order to see this, think of such things as using “first come, first served” or “first past the post” as tiebreakers when everything else is equal, and where these factors when not tiebreaking considerations would normally be afforded very little, if any, weight. Or consider giving ability to pay a tiebreaking presumption – this is also normally thought to be uncontroversial in true tiebreaking cases. Given this consideration, something like nationality should easily be seen as a legitimate tiebreaker as well. Nationality at least has the advantage over these other tiebreakers that it can be given some moral rationale in its behalf. Indeed, nationality is not merely a tiebreaker, but can have independent moral value. One’s compatriots share values and solidarity that is valuable as the kind of motivational stimulus that makes one ready to go to the aid of one another. Given that human rights are most often protected by States, the additional motivation of nationalism is of value as a bulwark against the loss of human rights protection in an otherwise dangerous world. With global rights protection a difficulty, it is important that the one institution that remains active and strong, namely the State, is pressured to protect some rights, and the rights of its citizens certainly count as some rights. Indeed, the responsibility to protect one’s own citizens is part of the Responsibility to Protect doctrine. Of course it might be claimed that nationalist sentiments can actually make cosmopolitan protection of rights harder. When one State reserves its resources for protecting rights only for its own nationals, there is less available for the rest of the world where weaker States may not be able to protect the rights of its citizens. But there need not be an exclusive attention to the interests of a State’s own citizens. Rather all I am arguing for at the moment is that a State can legitimately show favoritism toward its own nationals when there are conflicts among human rights. And I would be happy to add to this proposal that it is only justified for a State

Responsibility to protect human rights

131

to favor its own citizens if the net protection of human rights in the world is not thereby adversely affected. 7.3  h u m a n r ig h t s r i s k s of t h e us e of f orc e Going to war, or initiating other forms of force by one State against another, involves quite serious risks of human rights abridgment. Most attention is typically directed, and with good reason, to the increasing number of civilian casualties that are caused by modern wars of all sorts. When war is engaged in, even for seemingly very good reasons, such as to combat historical injustice or oppression, many civilians are likely to die. Civilian casualties are most likely for those who live in war zones, but with the increased use of long-range missiles, people outside of ­battle zones can be killed or harmed in other ways as well. And this should give us pause in endorsing the waging of such a war. In addition, and much less discussed, all wars will involve abridgment of the human rights of soldiers. Indeed, war is all about the loss of life of soldiers, and such abridgment of human rights also seems to have some weight against even humanitarian war. Of course if one voluntarily joins a military unit knowing that one’s life or liberty will be threatened, and one’s life or liberty is jeopardized, this is not necessarily a human rights curtailment. But if one is conscripted, or if one does not understand the risks one is facing when one volunteers, human rights curtailment is a distinct possibility. In violent use of force, the chief human rights abridgment risked is the right to life. In nonviolent use of force, the chief human rights infringement risked is the right to liberty. The abridgments of these human rights may occur while fighting for a just cause, namely the liberation of an oppressed people. But the justness of the cause does not mean that the rights of those who serve in defense of that cause should always be overridden. It may perhaps seem odd to speak of the loss of the lives of soldiers as involving human rights abridgment. The lives and liberties of soldiers are often thought to be discountable. Some think that soldiers have made themselves into “dangerous men,”10 who can be killed at will. Others argue that those who fight in wars without just cause make themselves liable to be killed.11 Here the idea, which I do not support, is that soldiers fighting in an unjust war are unavoidable casualties in the service of the 10



  See Michael Walzer, Just and Unjust Wars, NY: Basic Books, 1977.   See Jeff McMahan, Killing in War, Oxford University Press, 2009.

11

132

R e c onc i l i at ion

side that has a just cause. To say the least this idea is controversial. But it would pale by comparison with the claim that the lives and liberties of soldiers fighting a just war should also be discounted. This discounting really only makes sense, in my view, if the soldiers volunteered and knew, or should have known, the true risks of such volunteering. For in that case there is something like a waiver of right. But even in these cases, not insignificant objections about whether anyone can truly waive a human right are hard to dismiss. Contrary to what many of the Just War adherents believed historically, war is not best understood on the analogy of a boxing match, where participants understand the risks and voluntarily consent to them, thereby waiving their rights. Perhaps another objection is that even if soldiers’ lives have value, and can be the subject of human rights abridgment, the lives of soldiers are less significant than are the lives of innocent civilians. Indeed, the principle of discrimination or distinction in the Just War tradition as well as in international law calls for the favoring of civilian lives over those of soldiers. The principle says that during war soldiers may be targeted for attack but civilians may not be directly targeted. For war is about the killing and wounding of soldiers, and can be difficult to conceptualize otherwise. So, unless one thinks that war is always immoral, there must be some sense to the idea that the lives of soldiers are less valued than those of civilians. If the lives of soldiers are less valued than the lives of civilians, and if there is a conflict of responsibilities to protect rights between soldiers and civilians, then it seems plausible to prefer the lives of civilians. And so if the conflict is between risking the lives of soldiers and stopping oppression against civilians, it seems to make sense to discount the lives of the soldiers. One set of considerations that are relevant here involves not just the risk of loss of life of the solders but also the ancillary losses to the families of soldiers.12 The family members of soldiers are generally civilians, and their losses can be quite significant and not as easily discounted as would be the lives of the soldiers, which for centuries have been derisively described as mere “cannon fodder.” This image is meant to explain why the killing of soldiers is not very important, given the nature of war. But it is not so easily argued that the maiming, both physical and mental, of male and female members of the military is also the likely and justified result of war. Returning soldiers commit violence against family members

  I thank Cindy Holder for suggesting that I pursue this point.

12

Responsibility to protect human rights

133

and are often unable to hold meaningful employment because of the scars of combat. Such costs cannot easily be dismissed. In addition, as I mentioned above, there are often real costs involved to the rest of the civilian population when its government decides to wage humanitarian war. Waging war today is enormously costly. And these costs must be paid for. While many Western States are often assumed to be able to bear these costs easily, recent history has proved difficult to assimilate to that assumption. Even the United States has found it difficult to wage wars in Iraq and Afghanistan while also keeping the benefits of its previously modest welfare system intact. And if a State pursues its war with the objective of producing as few casualties as possible, the costs of such war climbs very high indeed. My view is that it is especially difficult to justify jeopardizing the lives of soldiers and the basic interests of civilians when we are talking not about wars of self-defense but wars undertaken for humanitarian reasons. In wars of self-defense, there are really three groups: the civilians who are nationals and whose lives are threatened by the invading army; the soldiers who are co-nationals and are trying to repel the invasion; and the soldiers who are part of the invading force. Discounting the lives of the invading force seems plausible since these soldiers have no right to threaten the population of the State they are invading. But in humanitarian wars, the soldiers who are invading do have a putative right to invade, namely to stop the oppression of the civilian population. The lives of these soldiers cannot be discounted merely on the grounds that they lack the right to do what soldiers typically do, namely kill other soldiers and increasingly indirectly to kill civilians as well. When soldiers are fighting for a just cause, and also one that is humanitarian in its motivation, their lives cannot be disvalued in any of the standard ways that soldiers’ lives have been disvalued. This means that the loss of life or liberty of these soldiers must be seen as in conflict with the lives of those who they are attempting to rescue. At very least, what this means is that when the number of civilian lives to be saved is less than the number of soldiers’ lives that are risked in the rescue there is a conflict that cannot be dismissed as inconsequential or confused. In any event, soldiers should not be required to risk their lives or liberty to help save the lives or liberty of smaller numbers of civilians who are not their co-nationals. If this is accepted, then it can be seen that the rights of soldiers can be legitimately appealed to in discussions of humanitarian interventions. I should admit that I also have similarly argued, in another work, that sometimes the lives of soldiers should generally not be risked for rescuing

134

R e c onc i l i at ion

the lives of co-nationals either.13 Indeed, only in the most extreme situation, where the lives of many civilians are at stake and the risk to soldiers is considerably smaller, is there even the beginning of an argument for requiring soldiers to risk life and liberty for civilians, whether the civilians be co-nationals or not. In any event, we stand in need of an argument that supports the view that soldiers can be required to risk life and liberty for the liberation of smaller numbers of civilians who are not co-nationals. And if the numbers of civilians who are not co-nationals and the number of soldiers are roughly equal, the home State of the soldiers needs an argument for why we cannot favor the lives of these soldier nationals over the lives of civilian non-nationals. 7. 4  a dj u dic at i ng c on f l ic t s i n volv i ng h u m a n r ig h t s There are several seemingly plausible strategies for resolving such conflicts as we have explored above, but each has its own distinctive problems as well. First, one can merely look to the greater number of rights that are in jeopardy. Second, one can look to the different moral character of the rights. Third, one can look to the character or circumstance of the right holder. And fourth one can look to the character of the act or the person that has caused rights to be put in jeopardy. I shall take up each of these in turn in this section of the chapter. What will emerge is a set of factors that should be considered, none of which is overriding. I will thus provide a loose adjudication procedure for solving some of the seemingly intractable problems of rights conflict. The first and most obvious strategy is to regard all responsibilities to protect human rights as being equally important and then resolve conflicts by simply favoring the action that has the least number of human rights abridgments. This strategy is obviously simple to apply. In the case that has concerned us, where soldiers’ lives and liberty are jeopardized to save the lives or liberty of civilians, we simply favor the sending of troops into humanitarian ventures where the projected loss of life or liberty of the soldiers is less than that of the civilians to be saved. There has been controversy over the years about whether the numbers should count when discussing human rights, but it seems to me that especially in

13 See Larry May, “Contingent Pacifism and the Moral Risks of Participation in War,” Public Affairs Quarterly, vol. 25, no. 3, April 2011, pp. 95–111.

Responsibility to protect human rights

135

otherwise intractable conflicts letting the numbers count surely is prima facie plausible. One objection to this adjudicatory strategy is to point out that while all human rights of the same kind should be treated equally, there is little reason to think that a right to life should be weighed equally to a right to a fairly minor liberty. While it is true that all human rights are ultimately grounded in the same normative principles, such as the principle of equal respect for the dignity of all persons, such a principle does not call for treating all human rights as existing on the same level of importance. Indeed, some human rights seem much more central to the value of dignity than other human rights. One need only recall the debates over the years about how to regard the very long list of rights in the Universal Declaration of Human Rights, where there is both the right to life and the right to holidays with pay. Most authors who have considered this quandary have allowed that human rights can be at least divided into basic and nonbasic ones, with the basic one’s holding sway.14 Such considerations make plausible a second adjudicatory strategy. The second strategy is similar to the first, largely a consequentialist way of adjudicating conflicts among responsibilities to protect human rights, but where the character or type of right matters. Here we still adjudicate conflicts by favoring the act that has the projected least loss, giving greater weight to losses that concern more important human rights than to those that involve less important human rights. And we would assign weights to human rights in terms of how central the right is to the core normative consideration of human rights, the equal dignity of persons. In this respect, the right to life is very important but can be seen as not always the most important right, since in some cases remaining alive in an emaciated and pain-ridden existence may not be consistent with dignity. There are obvious problems with setting a hierarchy of rights, as well as figuring out how much weight to assign to rights at each level. But at least a rough adjudicatory process can be constructed that will solve some of the problems of the first strategy. While it is relatively easy to see that some rights listed in the Universal Declaration of Human Rights, such as the right to paid vacations, are of less importance than other rights, such as the right to life, many of the cases of conflict are not so easily resolved. Indeed, many rights have increased or decreased value based on the context, such as the example of even the right to life of a person with low quality of life just mentioned.

14

  See Henry Shue, Basic Rights, Princeton University Press, 1980.

136

R e c onc i l i at ion

And because of the importance of context, it will be very difficult to construct a calculus, or anything close to such a decision-making metric, that will allow us easily to resolve conflicts among human rights. In this respect, one of the chief determiners of context is whether or not the agent has voluntarily placed himself or herself into a situation where his or her rights are likely to be abridged. This brings up our third strategy, where an increasingly complex consequentialist solution to the problem of conflicts of responsibilities to protect human rights also considers the character or circumstances of the person whose rights are in jeopardy. As was discussed above, on many accounts the fact that the right holder is innocent as opposed to not innocent will matter in terms of how rights are weighed in adjudicating conflicts. Those who are non-innocent may be regarded as having waived their rights, or, for those who disallow the waiver of human rights, as having less value because voluntarily jeopardized. Some others have argued that putting on a uniform allows for exceptions to be made to general prohibitions on not violating rights.15 Innocence does seem to matter here, but the difficulty is to determine how much it matters. I do not think that non-innocence negates human rights, and allow that it does matter somewhat, but remain unsure how much innocence should count in conflicts about rights protection. As I suggested above, entering war is not like entering a boxing ring. The likely consequences of entering a war to engage with an enemy are not nearly as clear as the likely consequences of volunteering to box with an opponent, despite their similarity in structure. And the dissimilarity is greatly increased if the soldier volunteers to join a military unit in peacetime, only to find that war breaks out subsequently but before his or her tour of duty has ended. And if innocence is based on whether the war in which a soldier fights is just or unjust, the voluntariness of entering a military unit is not determinative of whether or not the soldier should be considered innocent since the justness of the war, or battle, is normally outside of the voluntary control, or even knowledge, of the individual soldier. This brings us to the fourth strategy for adjudicating conflicts of responsibilities to protect rights: looking to the character of the act or person that has caused the risk of rights abridgment, whether to self or others. If a State that is sending its soldiers into harm’s way is itself innocent or 15 See Yvonne Chou, “Uniform Exceptions and Rights Violations,” Social Theory and Practice, vol. 36, no. 1, January 2010, pp. 44–77.

Responsibility to protect human rights

137

non-innocent, the rights conflict might be adjudicated by decreasing the weight of the human rights claims of those in the non-innocent State or increasing the weight of the human rights claims of those in the innocent State. Unlike the other strategies this one looks backward rather than forward in time. What is crucial is the moral character of the act or actor who has caused the situation where human rights are in conflict. In the case of war, someone might propose that the rights of the citizens of a State that is acting aggressively would not count as much as the rights of citizens of a State that is contemplating action based on humanitarian motivations. The major problem with this fourth approach, especially the last factor where the aggressiveness of a State’s war matters, is that it makes rights claims of citizens conditional on what their State has done. This attribution can sometimes be justified if the citizens have approved and voted for the government that merely does the bidding of those citizens. But if the State acts against the bidding of the citizenry, even seeking to oppress the citizenry, or a significant part thereof, it would be odd to taint the citizenry with the wrongs of their State. And this is even odder if the rights of the citizens are diminished by acts of the State that is causing the human rights problem in the first place. Such a strategy makes sense when the human rights conflict is generated by State action that is truly representative of the wishes of the citizenry. But in most situations we will be forced to look at consequentialist considerations in order to resolve human rights conflicts. The lessons learned from the previous sections tell in favor of some kind of weighing of human rights claims, either in a modified consequentialist way that looks to the amount of good to be done by favoring or disfavoring a certain human rights claim, or in a nonconsequentialist way that looks to the past situation that caused the conflict to develop. While weighing of human rights claims is problematic in some respects, it is preferable to other strategies that could adjudicate conflicts of responsibility to protect human rights. Mixing consequentialist and deontological categories is messy but often best represents the intuitions that give rise to the problem in the real world. In general, I have argued that such a mixing of normative theories is often a good strategy, and indeed a better strategy than trying to twist things in such a way that one or the other theoretical approach is pushed beyond its plausible borders.16 16 See Larry May, “Integrity and Value Plurality,” Journal of Social Philosophy, vol. 27, no. 1, Spring 1996, pp. 123–39.

138

R e c onc i l i at ion

So, I propose that conflicts of responsibility to protect human rights of the sort addressed earlier in this chapter be adjudicated in most situations by preferring that action that causes the least human rights abridgment, considering the number of people affected, the strength of the rights in play, and the situation of the agents and their actions primarily in terms of their voluntariness. In some rare cases, it will be possible merely to look to the innocence or non-innocence of the parties. This will only be true where those who are suffering in some sense approved of the government, knowing that there was a serious risk that their government would jeopardize just the rights that are now being jeopardized. In this way, a complex decision procedure can be constructed that will allow for the resolution of many cases of conflicting responsibilities to protect human rights when the question is whether humanitarian intervention should be conducted to end or prevent a human rights atrocity. 7.5   obj e c t ions I will next consider a set of objections to my proposed resolution of some of the conflicts of responsibility to protect human rights in humanitarian crises. The first of these objections is that my way of resolving the conflict will mean that it is rarely true that humanitarian interventions will ever be justifiable. The reason for this is that humanitarian wars will always involve the loss of life or liberty of someone’s soldiers, and it will be very difficult to say that this cost will be overridden by the gain in human rights terms. This state of affairs will undermine the emerging Responsibility to Protect doctrine that is meant to make the world a safer place for those individuals who cannot protect themselves from the ravages of war or from mass atrocities often perpetrated by their own governments. My proposed solution may work to resolve conflicts, but it will undermine the very idea that gave rise to the need for a resolution. In my other writings on the general topic of humanitarian intervention, I have cautioned that such intervention is highly risky and should only rarely be engaged in.17 Military intervention to try to stop a genocide, for instance, is difficult to mount and to control once it has begun. In part, this is because there are rarely good military targets that can be attacked in a way that would make a difference to the humanitarian crisis. And even when there are good military targets, such as in the case of 17 See May, Aggression and Crimes against Peace, ch. 13; and May, Genocide: A Normative Account, ch. 12.

Responsibility to protect human rights

139

NATO’s intervention into the Kosovo mass atrocity, the chances are that the intervention will backfire by setting a bad precedent for the long-term solving of what are largely nonmilitary crises. So, I do not worry that my current proposal will also have the implication that such interventions should rarely be engaged in.18 The second objection is that I have ignored the salient fact that there are people in the world who are in need of being rescued from the oppression of their States and that this constitutes a vast challenge to the idea that States are the best resource for the protection of human rights. Indeed, my support for giving weight to nationality belies the fact that it is cosmopolitan rather than State action that is needed in the case of oppression and mass atrocity. To portray this matter as one where States are the cause of the problem and yet also must be the solution is to replicate the Statist paradigm that has gotten us into the mess that we are in. My response to this objection is to admit the paradoxical nature of the inquiry as I have set it out, but also to reinforce the fact that truly international action, as happened when NATO bombed the former Yugoslavia, is itself quite rare. And in any event it was the United States and only a couple of European States that were the ones who supplied most of the weapons and troops, as well as the command and control structure for this particular humanitarian venture. So, while it may be true that my proposal remains mired in a Statist conception of the world, it is also true that the world is still best seen in Statist terms. Even as it is true that States are often the perpetrators of mass atrocities, or complicit in not stopping mass atrocities within their borders, true international action has been rare as a means to stop such atrocities. For the foreseeable future, it is States that will have to be relied on if military intervention to stop an atrocity is needed, and yet States are a problematic source of such aid. A third objection is that I have lost sight of the purpose of the Responsibility to Protect doctrine, namely to make the States and peoples of the world more inclined to go to the aid of individuals and groups who are being oppressed or who are the subject of mass atrocity. Instead, so the objection would go, I have given more reasons for thinking that States 18 The literature on humanitarian intervention is quite large. I would single out three books that focus on the conceptual issues I have also focused on: Fernando R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, NY: Transnational Publishers, 1988; J. L. Holzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical Legal, and Political Dilemmas, NY: Cambridge University Press, 2003; and Deen Chatterjee and Don Scheid (eds.), Ethics and Foreign Intervention, NY: Cambridge University Press, 2003.

140

R e c onc i l i at ion

should not be inclined to intervene in such situations than reasons for such intervention. Indeed, on my reading, the Responsibility to Protect doctrine seems only most clearly to include the responsibility to protect a State’s own troops, and rarely the responsibility to intervene in behalf of the world’s oppressed. While it might appear so, my intent is not to restrict the Responsibility to Protect to one’s own troops or nationals. I agree with the original intent of the doctrine that it is a State’s responsibility first of all to make sure that its own citizens’ human rights are not jeopardized. If the States of the world would stop attacking their own citizens, or standing by and doing nothing while groups of citizens attack other groups of its citizens, the world would be a much safer place. As the Report of the International Commission on Intervention and State Sovereignty (ICISS) declared: the primary responsibility in this regard rests with the state concerned, and it is only if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place.19

The ICISS Report thus is similarly focused on States, as is my own focus. I do not hold the lives of soldiers to be more valuable than those of foreign civilians, but I do worry when we unreasonably disvalue the lives of these soldiers. A fourth objection is that the problem I have identified can be resolved by making the terms of military service clearer to particular soldiers before they sign up to fight, as well as making it clearer that soldiers retain the right to refuse to fight. As long as these practices are set in place, and soldiers volunteer to risk their lives nonetheless, then their lives can still be discounted since the soldiers have waived their rights to life and liberty by so volunteering. The conflict of rights is not intractable and contrary to my claims should not upset the increasing call for humanitarian wars to confront atrocities in the world. My response is quite sympathetic to this suggestion, at least in theory, although I have grave doubts in practice. I agree that it may be possible to see soldiers as having waived their rights to life when their acts of volunteering are fully informed. Indeed, I would like to see something like a contract that spells out in very graphic and understandable terms what are the likely consequences of volunteering to be a soldier at a time when humanitarian war is likely. That no such contracts exist at the moment 19 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, p. 17.

Responsibility to protect human rights

141

is testimony to the worry that few would sign on, and for this reason the unlikelihood that such contracts will be used anytime in the foreseeable future. Yet, if a volunteering soldier really did understand that he or she was risking life to save someone else’s life, I suppose that I would then allow that some discounting of the lives of soldiers could be countenanced. Notice though that there would have to be liberal exit options when a solider changed his or her mind for there to be anything approaching a waiver of the right to life. And also note that most defenders of human rights should be hard-pressed to accept any waivers of human rights in the first place. After all, how can a right that is based on one’s status of being human be subject to waiver without thinking that those doing the waiving will then be nonhumans? Throughout this chapter I have argued that there is a serious conflict of responsibility to protect human rights to life and liberty. On the one hand, human rights are jeopardized by oppression and mass atrocities. On the other hand, there is jeopardy for human rights to life and liberty of the soldiers who are ordered to engage in military operations to stop or prevent oppression and mass atrocity as well as the civilians who will bear the economic costs of the war. I have attempted to provide a strategy for resolving this conflict, but I have not backed away from thinking that my resolution, which takes seriously both sides of this conflict, will mean that fewer humanitarian interventions are justified than is normally thought. But in the end, the lives of soldiers, and their co-national civilian compatriots, should not be disvalued in the headlong rush to support humanitarian action.

pa r t I I I

Rebuilding

ch apter 8

Responsibility to rebuild and collective responsibility

At the beginning of the twenty-first century, a movement developed that conceptualized global justice in terms of the Responsibility to Protect. Most of the discussion about this idea has focused on intervention to thwart or prevent atrocities, fueled in large part by the failure of the international community to do anything to stop the genocides in Rwanda and the former Yugoslavia in the 1990s. But part of the United Nations mandate is also to help: States build capacity to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.1

It is this underexplored part of the Responsibility to Protect that will be the focus of this chapter. But I will also say quite a bit about the general idea of Responsibility to Protect, especially concerning its relationship to collective responsibility. As in several earlier chapters, I will begin by looking to the Just War tradition for assistance in beginning to think about this complex idea.2 In particular, I will look to the work of Grotius and Vattel. Vattel is the bestknown advocate of a responsibility to intervene but his work can also, I believe, easily support a responsibility to build, or rebuild, capacity to protect as well, as a general part of jus post bellum. I will then sketch several conceptual problems that Vattel’s approach elicits but does not clearly solve. In the end I will attempt to solve some of these problems, but two problems remain a major sticking point to the idea of a responsibility to 1 United Nations General Assembly World Outcome Document, 2005, para. 139. 2 My recent books in international law all proceed from a consideration of the Just War tradition: Crimes against Humanity: A Normative Account, Cambridge University Press, 2005; War Crimes and Just War, Cambridge University Press, 2007; Aggression and Crimes against Peace, Cambridge University Press, 2008; and Genocide: A Normative Account, Cambridge University Press, 2010. My most recent book, Global Justice and Due Process, Cambridge University Press, 2011, looks back at the theoretical debates about Magna Carta.

145

146

R e bu i l di ng

build or rebuild the capacity to protect. As a result, we will find that some jus post bellum principles sit uncomfortably with other principles in the Just War tradition. 8.1  h i s t or ic a l ro o t s of t h e r e s p ons i bi l i t y t o pro t e c t Vattel is a model for those who wish to defend the contemporary doctrine of the responsibility to protect. In Book i, chapter v of his treatise, The Law of Nations or the Principles of Natural Law (1758), he says: If a Nation were to make open profession of treading justice under foot by despising and violating the rights of another whenever it had the opportunity of doing so, the safety of the human society at large would warrant all the other Nations in uniting together to subdue and punish such a Nation.3

Vattel discusses this issue under the heading of the “right to use force to obtain justice,”4 and this right is said to follow from “the offices of humanity,” which are “common duties.” “Nations mutually owe one another” to do all they can “to promote the welfare and happiness of others.”5 Much later in the text, he makes the most direct reference to the part of the responsibility to protect I wish to address when he says: If a sovereign is dealing with a perfidious enemy, it would be imprudent to trust to his word or his oath. In such a case the sovereign may with perfect justice act as prudence requires, and take advantage of a successful war and follow up his victory until he has broken the excessive and dangerous power of the enemy, or forced him to give adequate security of proper conduct in the future.6

Vattel then also seemingly commits himself to the idea of total submission in some cases, what he calls “a complete and final victory,”7 certainly contrary to what most authors would argue for today. Included in Vattel’s offices of humanity is that a State “should not limit its good offices to the preservation of other States, but in addition should contribute to their advancement according to its ability and their need of its help.”8 Here the “need for help” captures the insight behind the provision of the “Responsibility to Protect” that I wish to investigate, namely the aid that helps States build or rebuild a capacity to protect the State’s 3 Emir de Vattel, Le Droit des gens, ou principes de la loi naturelle (The Law of Nations or the Principles of Natural Law) (1758), trans. Charles G. Fenwick, Washington: Carnegie Institution, 1916, p. 135. 4 Ibid.  5  Ibid., p. 114.  6  Ibid., p. 345. 7 Ibid.  8  Ibid., p. 115.

Rebuilding and collective responsibility

147

own people from massive human rights violations. Vattel’s view is consistent with the kind of capacity building that seems to many theorists today to be a distinctly contemporary requirement of all States, but which Vattel clearly implies in these remarks from the mid eighteenth century. Grotius’s “common law among nations” and Vattel’s “common duties” or “offices of humanity” envision a collective responsibility of States for the maintenance of peace across the globe. In many ways these duties or responsibilities are collective in a distributive sense, where each State has a duty to go to the aid of other States and perhaps to populations within States that are in need of assistance. In addition, there is a sense that both Grotius and Vattel seem also to countenance a nondistributive collective responsibility of States, where the responsibility attaches to the whole and not necessarily to any particular State. Insofar as States are associated in a society of States bound by a common law, jus gentium, of the sort envisioned by Cicero,9 there may be a nondistributive collective responsibility of the States of the world to go to the aid of States or populations that are in need. But in the Just War tradition there was not much discussion of this nondistributive sense of collective responsibility of States or Nations, with the exception of scattered references such as Grotius’s idea of an association or society of States.10 8.2  di s t r i bu t i v e a n d non di s t r i bu t i v e r e sp ons i bi l i t i e s of s tat e s In my other writings on the topic of collective responsibility I have distinguished between distributive and nondistributive collective responsibility.11 Groups of people can be conceived as forming collectivities of various sorts. If the group is organized so that it can engage in joint action we can speak of the group acting and having responsibilities. These collective responsibilities can be understood as distributed insofar as the responsibility of the group is completely reducible to the responsibilities of the members of the group, the individual human persons who compose the group. Collective responsibility can sometimes also be understood in

9 See Cicero, De Officiis (On Duties) (c.45 bc). 10 See Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925, p. 17. 11 See my books on the nature of collective responsibility: The Morality of Groups, University of Notre Dame Press, 1987; Sharing Responsibility, University of Chicago Press, 1992; and The Socially Responsive Self, University of Chicago Press, 1996.

148

R e bu i l di ng

a nondistributive way, in that some or all of the responsibility attaches to the group in a way that does not distribute to the members of the group. For there to be nondistributive collective responsibilities of States, there must indeed be a sense in which there is an association or society of these States in the first place. I have elsewhere tried to make out a case for such an idea in terms of a common solidarity among States that goes beyond mere self-interest.12 But the doctrine of the Responsibility to Protect does not need a robust solidarity among States, nor does it need a nondistributive sense of collective responsibility. A shared responsibility of the distributive sort is sufficient for thinking that States have a responsibility to protect other States that are the victims of such gross harms as aggression, famine, or genocide, just as it is not necessary that there be an association of persons for each of us nonetheless to feel that fellow humans are our brothers and sisters who are owed our help, as Vattel recognized over 250 years ago.13 Collective responsibilities can attach to very loosely formed groups, such as a collection of States that are not bound by an association. To speak of collective responsibility here is, again in the words of Vattel, to speak of what each State must do for each other State: if a Nation is suffering from famine, all those who have provisions to spare should assist it in its need, without however exposing themselves to scarcity … Whatever be the calamity afflicting a Nation, the same help is due it.14

This sharing of responsibility, as a form of collective distributive responsibility, seems to be all that Vattel had in mind and all that is called for in the United Nations General Assembly World Outcome Report that announced the doctrine of the Responsibility to Protect, and I shall proceed in this spirit throughout the chapter. The rest of this section will be taken up with explaining what even this somewhat weaker version of the collective responsibility of States could be based in. Vattel thought that it was the brotherhood of all humans that was the main premise in the argument for thinking that individuals and States should go to the rescue of those who are in need of help. Today it is sometimes said that it is the shared humanity of all people that is the central premise in that argument. Even if it is accepted that all individual 12 See May, Aggression and Crimes against Peace, ch. 3. 13 See Emir de Vattel, Le Droit des gens, ou principes de la loi naturelle (The Law of Nations or the Principles of Natural Law) (1758), trans. Charles G. Fenwick, Washington: Carnegie Institution, 1916, p. 120. 14 Ibid., p. 115.

Rebuilding and collective responsibility

149

humans are morally obligated to go to one another’s aid by their common bonds of humanity, it remains to be seen why States would have an obligation to go to the aid of individual humans, and more difficult yet, why States would have an obligation to go to the aid of other States. The first of these problems is perhaps not so difficult to solve. If we think of States as simple collections of individual human persons, the States can be the repository of the moral obligations of individuals. When we speak of States there is a sense that we are speaking primarily of the members of states, the individual human persons. As I have argued in several other places, we are also speaking of the way these individual human persons are related to each other as well, where these relations have ontological significance.15 Morally, States can certainly have obligations insofar as their members have acted in appropriate ways to bind their States. Insofar as this is true, States may have an obligation to go to the aid of specific individuals based on the State’s vicarious obligations arising out of the obligations of the members of States. Or, alternatively, it seems to make sense at least that States can meet the moral obligations of their individual members when they act. As I just explained, speaking of the actions of States is in a sense shorthand for speaking of the actions of individual members of States. So, there should be no conceptual problems at all in States meeting the obligations of their members, even if it is still thought to be problematic to say that the States themselves take on the obligations that began life as the obligations of members. The satisfying of obligations by States really would only be a way for the State to act on the shared obligations of its members. And the acting of States would also be just a way to speak of a mechanism by which individual humans acted to meet their obligations. States play an obvious role in the way that individual humans meet their shared – that is, distributed collective – responsibilities. In this vein, it might also make sense to allow States to bind themselves, by the making of treaties for instance, where the State takes on obligations that did not arise first as obligations of the members of States, as long as the obligations are still attributable to individual humans. These obligations could still be thought of in distributive terms, but where the State is somehow authorized to create obligations that are then shared by the members of these States. And it is not unreasonable to think that the State is obligated to meet these obligations as the repository of the shared obligations of its members. In this way, the State is a placeholder in two

  See May, The Morality of Groups, ch. 1.

15

150

R e bu i l di ng

senses: as a repository of obligations of individual humans, even if those individuals did not originate those obligations, and as a way to meet the obligations of individual humans. All of the above considerations now allow for one possible way to understand the responsibilities or obligations that States might have to one another, such as supposedly occur in the Responsibility to Protect doctrine. We can think of such obligations or responsibilities as elaborate placeholder arrangements. One State, thought of as a placeholder for that State’s human members, has an obligation to another State, also thought of as a placeholder for its human members. Or to put it differently, an organized group of individual humans has a distributed collective responsibility toward another organized group of humans. Of course, it is not just any organized group of persons but ones that are related to each other by characteristic relationships of State membership. For there to be nondistributed collective responsibilities of States, it would have to be true that something other than the human members of the State was involved in the creation of the responsibility. And one way to think of this is that the relationships among the members played an instrumental role in the creation of the State’s responsibility. Vattel thinks that States have relations among themselves just as individual humans have relations as brothers or sisters. Or only slightly less controversially, it could be that members of States, qua members, not qua individuals, have relationships with the members of other States, qua members, that give rise to State responsibilities of mutual aid. In my view, States are ontologically infirm. We can speak of them as acting and as taking on obligations, but this is best seen as shorthand. Even the making of treaties, the paradigmatic way that States bind themselves, is best thought of in a much more complex way that involves reference to what the individual human members of States do at each crucial juncture. So, States are not easily conceptualized as persons or entities that can act in their own right, in a nondistributive way. And it is also hard to characterize States as having nondistributive responsibilities. But one can think of States as embodying the distributive responsibilities of their members and hence, in this sense, to think of States as having collective responsibilities nonetheless. If States are ontologically infirm, the obligations of States are also infirm, when seen in their own right, rather than as placeholders for the members of States. Yet, as I said, this is the linchpin of thinking that States have responsibilities to go to the aid of other States. Ontology matters for the way we understand the Responsibility to Protect

Rebuilding and collective responsibility

151

doctrine. If States are infirm, then the society or association of States is infirm as well, and especially if such a society is seen in terms of nondistributive responsibilities. But this only means that the Responsibility to Protect should be understood in terms of shared responsibility of people rather than nondistributive responsibility of States. Whether this helps or hurts the doctrine of the Responsibility to Protect will remain to be seen as we proceed to look at the specific responsibility to build or rebuild the capacity to protect a State’s people. This much is already clear: the members of States, at least the members who hold high-ranking roles as officials, will have to take their own responsibilities seriously when it is claimed in the international domain that their States have responsibilities to other States. One last point worth mentioning is that State capacity16 to respond or to build capacity is also primarily a matter of how individual members of States are enabled to engage in joint action. When State responsibility is understood as distributive responsibility of the members of States it will be easier to avoid the problem of no one taking responsibility when collectivities are said to be responsible. This is similar to the problem of accountability of States. Concerning this matter, at Nuremberg Justice Jackson famously said that leaders of States should be held accountable for the wrongdoing of States since States do not commit wrongs without individuals doing so.17 8.3  r e sp ons i bi l i t y t o bu i l d or r e bu i l d c a pac i t y As I indicated above, the responsibility to protect embraces three specific responsibilities: A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. B. The responsibility to react: to respond to situations of compelling need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction, and reconciliation, 16 Throughout this chapter I will use the language that tracks that of the Responsibility to Protect literature. Philosophically, it is probably better to think of “capacity” here as an ability that can be actualized at any time. I am not talking about capacities as what one may develop, such as the capacity to speak French, which is only actualized when I have taken a sufficient number of lessons in the future. I am grateful to Robert Talisse for discussing this issue with me. 17 Robert H. Jackson, Report of United States Representative to the International Conference on Military Trials 50, 1945.

152

R e bu i l di ng addressing the causes of the harm the intervention was designed to halt or avert.18

This is how Gareth Evans has described the three types of responsibility of States. The Responsibility to Protect is thought to be a responsibility not only of a given State but also of the society of States. And this means that the responsibility falls especially hard on the leaders of States, whether we are talking of responsibility to protect a population from within (the first prong) or to intervene to protect from without (the second prong) the State where the mass atrocities are occurring, or are likely to occur. This also helps explain the unpopularity of the Responsibility to Protect among State leaders at the moment. But I would point out that this reaction is in part misdirected since part of the Responsibility to Protect involves only the responsibility to build capacity (the third prong), not necessarily to intervene militarily or put a State’s citizens at grave risk due to invasion. So, some of the problems addressed in the previous chapter can be ameliorated if one focuses only on this third prong. In both the first and second prongs of the Responsibility to Protect it is assumed that a State where a mass atrocity is occurring has the capacity either to stop the atrocity on its own or to do so as a response to pressure from outside forces, such as the United Nations or NATO acting in behalf of the society of States. But such an assumption is rebuttable and has indeed been proven wrong in a number of recent cases such as contemporary Rwanda in the 1990s. As it turned out, Rwanda did not have this capacity, or was actively choosing not to exercise it. In so-called failed States, it is even clearer that the State does not have the capacity to protect members of its own society. Rebutting the presumption that a State can protect its own population is not always easy to do, but there are some clear cases, especially concerning States decimated by war. When the assumption that a State can protect its own citizens is not true, then we move to a third prong of the Responsibility to Protect, the responsibility to build or rebuild the capacity to protect. In one sense the responsibility to build or rebuild the capacity of a State to protect its citizens is like the responsibility we have to help people regain autonomy after they have been the victim of especially horrible abuse. The responsibility is grounded in the idea that we are 18 Gareth Evans, The Responsibility to Protect, Washington DC: Brookings Institution Press, 2008, p. 41.

Rebuilding and collective responsibility

153

all better off if we do not have to care directly for each other but if we can enable these others to care for themselves. And for others to care for themselves they sometimes need help to develop, or redevelop, capacities of self-help. This is like the old saying that if you give a fish to a person he or she can eat for a day, but if you teach a person to fish he or she can eat for a lifetime. The capacity to fish, rather than the provision of food in the form of a single fish, is what is needed to make a person independent and no longer someone who needs to rely on the rest of us to provide food in the future. Similarly, States sometimes need to be helped to develop the equivalent capacities of the ability to fish. I will explore this idea in more detail here and provide some examples before turning to a set of problems with this idea. As I suggested above, the responsibility of States is largely to be understood on the model of the aggregated or shared responsibilities of the persons who constitute those States. The capacity to protect is thus to be analyzed in terms of the ability of individual persons in a given state to band together sufficiently to engage in joint actions necessary to protect fellow members of that State from atrocities. Of course, in those cases when the atrocity in question is not committed by the State itself, building or rebuilding the capacity to protect will mean aiding in reconstituting the institutions of the State. Rebuilding capacity to protect is not merely about inspiring the State to act; instead, it is primarily about organized joint action. In this sense, the Responsibility to Protect is primarily a matter of collective responsibility.19 Being capable of something is not the same as actually doing it. So, the capacity to protect is not the same as actually protecting. What needs to happen is that individuals are taught the organizational skills or other means to allow them to confront an emerging or ongoing mass atrocity. And what this involves will at least somewhat vary based on the kind of atrocity and the situation on the ground. A persecution or genocide that is fomenting due to media incitement is very different from one that is being orchestrated by a segment of the government itself. And, in the context of war or armed conflict, often a State loses its capacity to protect its own citizens, which of course is very different from merely choosing not to protect or actively engaging in abuse of the rights of its citizens. In all of these cases, what is involved in the responsibility to build or rebuild 19 On this issue see Larry May and Stacey Hoffman (eds.), Collective Responsibility: Five Decades of Debates in Theoretical and Applied Ethics, Lanham, MD: Rowman and Littlefield Publishers, 1991.

154

R e bu i l di ng

capacity may vary quite a bit, but the form of the responsibility is quite similar.20 There is another phenomenon that is curious in this respect, namely that in some cases when a State first moves from authoritarian to democratic government, the State finds it more difficult to prevent mass atrocity. This may be a temporary problem of States that move too quickly to democracy without having first established the proper infrastructure for such a change. But whatever the cause, new democratic States have recently seen an increase in ethnic violence and other forms of mass atrocity. Outside help is needed to curtail the violence, where it had not been needed before the turn to democracy. 21 Here is an example of where capacity building is needed, even in cases where a State seems on the road to a more progressive form of government than it had before. Some authors have worried about the first two prongs of intervention to stop an atrocity or to put pressure on a State that has previously been jeopardizing its population.22 In this chapter I have been focusing on what could be called the third prong of the Responsibility to Protect, intervention or pressure to build or rebuild capacity to resist mass atrocities and other major human rights abuses. The third prong is perhaps best seen as a jus post bellum principle, or more broadly as a principle of “aiding” rather than a principle of direct military or even civilian intervention. Indeed, it is unclear why the responsibility to rebuild or build the capacity to protect would involve military intervention of any sort. And the kind of civilian interventions can seemingly be more easily controlled by the target State, where capacity is to be enhanced, than would be true of normal military interventions. The kind of intervention of the third prong of the Responsibility to Protect, concerning building or rebuilding capacity, may still be something that recipient States are suspicious of, especially given the long history of supposed helping hands in velvet gloves turning into imperialists with iron fists. In the next section of the chapter I address these worries 20 A separate issue is whether a State has the disposition to act a certain way. The international community also tries to influence the dispositions of States in its Responsibility to Protect principles, but this aspect is not what I am here focusing on. I focus here only on whether a State could protect rights if it had the disposition to do so. 21 See Michael Ignatieff, “State Failure and Nation Building,” in J. L. Holtzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, Cambridge University Press, 2003, pp. 299–321, especially p. 300. 22 See Jennifer M. Welsh and Maria Banda, “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?”, unpublished manuscript in the possession of the author.

Rebuilding and collective responsibility

155

and attempt to respond to them. Similar worries have been expressed about so-called “humanitarian intervention” and I have voiced some of these criticisms myself.23 But I shall try to show that concerning the third prong of the Responsibility to Protect such worries can be shown to be less serious than worries that I and others have voiced about the two other prongs of the Responsibility to Protect. I will address these worries under the label of worries about infringement of sovereignty. 8. 4  c on f l ic t i ng nor m s of s ov e r e ig n t y a n d pro t e c t ion of r ig h t s All of international law faces the problem that as it increases in scope State sovereignty is seemingly diminished. Personal autonomy is seemingly diminished whenever one person interferes with what another person has chosen to do. Since sovereignty is a kind of autonomy for States, the same kind of problem exists at the level of States that exists at the level of individuals. The infringement on State autonomy or prerogative by international law represents a conflict of norms: Statist versus cosmopolitan. Or at least so it seems. In this section I will argue that this conflict is not as great as it is often portrayed to be. My position is that autonomy can be enhanced by various forms of intervention, and that in any event autonomy is not mere license, as John Stuart Mill argued.24 It can be in a State’s interest to be interfered with, at least when the interference is benevolent, so that the worst abuse of rights of its citizens can be prevented now as well as in the future. The component of sovereignty that is most like personal autonomy can be enhanced, rather than diminished, by certain temporary forms of interference in what a State is trying but failing to do. And here we can return to the third prong of the Responsibility to Protect, the responsibility to rebuild capacity for agency. Agency is the ability to carry out what one has chosen to do. Autonomy is the capacity to do what one has chosen where one’s choices are in some significant sense choices of the self. If a person completely lacks agency that person also does not have autonomy, since the capacity to act on choices that are one’s own turns on the capacity to act on choices of any sort. In this sense, the weaker is one’s agency the weaker is one’s autonomy. The same seems to be true of 23 See the final chapter of May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2009. 24 John Stuart Mill, On Liberty (1863), ed. Stefan Colini, Cambridge University Press, 1989.

156

R e bu i l di ng

States as of selves. So, any improvement in a person’s, or a State’s, agency is highly likely to have a positive impact on that person’s or State’s autonomy, not to be a restriction on autonomy, at least in the long-run. Indeed, it makes little sense to talk of sovereignty, or its abridgment, for so-called failed States, since these States (if they can be called such) are so weak that they lack the capacity to take actions, and hence to be autonomous.25 So, there is a strong sense that when one State intervenes into the affairs of a failed State to build or rebuild capacity to act, this is not a straightforward violation of the sovereignty of the failed State. Of course, it will matter how strongly coercive the intervention is, and how strongly the recipient State objects to the intervention. There is also the autonomous choice about whether one wants to be helped. But if one is very weak indeed, then it would be odd to say that aid that strengthens the capacity to act is in some sense a violation of autonomy or sovereignty, unless there were so many strings attached to the aid that future autonomous action is indeed curtailed. If there is a conflict here, it is a conflict between narrowly focused legal norms and broader norms of morality. The narrow legal norm of sovereignty stipulates that a State’s sovereignty is to be respected at all times. Here is Article 2/4 of the United Nations Charter: 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.

On the narrow, legal, construal of the United Nations Charter, acts of humanitarian intervention that employed or risked the use of force are seemingly proscribed. The only exception concerns Article 51’s stipulation of “the individual or collective self-defense” “against an armed attack” and only until the United Nations itself is prepared to act. And this exception only concerns humanitarian crises that are caused by armed attacks. But there is a moral norm that is well-articulated in the nonbinding Preamble of the United Nations Charter, namely “to employ international machinery for the promotion of the economic and social advancement of all peoples.” This very broad provision certainly could be read 25 I do not mean to rest too much on the autonomy/sovereignty analogy. There are many disanalogies between States and individual human persons. States do not all want to be able to protect human rights, but normatively they should want to do so, especially concerning the human rights of the State’s citizens. Some of the States of the world disregard or work to undermine human rights, not merely lack the capacity to do otherwise. But it seems reasonable to think that most States would want to be able to protect these rights even if these States also do not always choose to do so, since not protecting the human rights of its own citizens is one of the causes of significant dissent and instability in these States.

Rebuilding and collective responsibility

157

to include humanitarian intervention of the sort that would fall under the Responsibility to Protect’s third prong. Notice that like the Preamble of the United Nations Charter, the Responsibility to Protect has not yet earned the status of a legal norm in international law. It is thus much more like a moral norm, and one that seemingly conflicts with the legal norms of Articles 2/4 and 51 of the United Nations Charter. And yet even here, there is no necessity that these legal and moral provisions are read as being in conflict with each other, since the Responsibility to Protect is a last-resort provision that comes into effect only when a State’s capacity to protect its citizens is gravely undermined. How last resort is understood in jus post bellum terms is itself not an easy matter to understand. At least one plausible way to understand jus post bellum last resort is as a situation where a State is incapable of doing something that it chooses concerning post war reconstruction, and there is no other way for the State to regain this capacity on its own. If the State really does lack this capacity, and cannot help itself to regain the capacity, then outside help for the State to gain or regain this capacity is a last resort. When there is no other way for the State to become an autonomous agent except through another state’s intervention to help build its capacity, morally such aid should be given, even though we are left with the paradoxical situation of heteronymous aid being necessary for autonomous action. There is another matter to consider as well. There is a paradox in that helping one State achieve self-determination may embolden factions of other States to demand the same thereby destabilizing regions of the world. Such self-determination movements may jeopardize the sovereignty of States that are not currently failed States, and may even be moving toward democracy, although at a slower pace perhaps than is desired by factions within the State. Of course, the demand for a faster pace may cause a reaction that would not be for the best. And this is especially true if the self-determination movement is used as a pawn by global actors to extend their own influence in a given region. Such considerations should not be ignored, and may complicate the ability of a State to attain true autonomy.26 The point of this section of the chapter can be put this way: humanitarian intervention is at least morally acceptable when it makes benevolent or at least nonmalevolent sovereignty possible, and even likely. In such situations, humanitarian intervention, especially of the third prong, should not be

  On this point see Ignatieff, “State Failure and Nation Building,” p. 301.

26

158

R e bu i l di ng

straightforwardly seen as an abridgment of sovereignty. As long as the lastresort condition is satisfied, acts of humanitarian intervention that rebuild the capacity for agency are an aid rather than an abridgment of sovereignty. And if the State could recapture its lost capacity to act to secure the rights of its citizens, without the intervention of another State, then the Responsibility to Protect provision of responsibility to rebuild would not authorize intervention. In this way, it is possible to bridge the gap between the narrow legal norm of sovereignty and the broader moral norms concerning aiding States in social and economic development. The solution is in seeing the value of a normative pluralism that allows for reaching across seemingly unbridgeable gaps of legal and moral norms in the international arena. 8.5  f ou r probl e m s There are several seemingly intractable problems to address before closing this discussion of the Responsibility to Protect. The first is that when one State intervenes in the affairs of another, even with the best of intentions and spurred on by a collective responsibility to protect, things are likely to backfire in that the target State and the majority of its citizens may feel threatened and respond by making it even harder to stop the human rights abuses. Second, if the intervention is by one group of a State’s citizens against another the likelihood of civil war or even secession is increased, and at very least the animosity caused is likely to make future intervention efforts less effective. Third, well-entrenched minority governments will often resist efforts of capacity building because they fear that their hold on power will be undermined. And fourth, using the law to motivate States to do what is largely a moral duty runs the risk of many unintended practical consequences of the sort that comes from mixing legal and moral norms. Concerning this first problem, aiding a State to build or rebuild the capacity to protect its citizens from mass atrocity should be seen as a relatively uncontroversial collective responsibility of the society of States. Aiding to build capacity of a State cannot normally be conceptualized as a violation of that State’s sovereignty. In most cases, the aid is requested and hence not a violation of sovereignty at all. In other cases, a State may initially resist any form of foreign intervention, but it is hard to see a State wanting less capacity to act than more. As I noted above, this third prong of the Responsibility to Protect is not like forcing someone to accept a gift of food, but rather like helping a person to see how she can produce food on her own. Such aid ties into the natural need of persons to be selfsufficient and can hardly be something that is resisted for long.

Rebuilding and collective responsibility

159

In addition, the State required to come to the aid of another State will normally not see the forms of aid as a major burden, especially since it will not normally involve putting troops on the ground, or even placing civilians of that State in harm’s way. I suppose it could be said that a serious economic burden could be substantial depending on what specifically is needed to bring a State to the point where it can protect its population from mass atrocity. But this is where the society of States comes into the picture. The responsibility to build or rebuild capacity as with other prongs of the Responsibility to Protect is a distributed collective responsibility of the society of States. Because of this, the burden on any one State can be minimized. And when the responsibility to help is spread throughout the international community there will be less of a likelihood that one of these States will try to take advantage of the situation and oppress the State and its citizens. The possibility of abuse is always present and it is important that the society of States monitors any situation where one of its member States intervenes to aid another State. Whichever prong of the Responsibility to Protect is under discussion, it is crucial that the aiding State not use the Responsibility to Protect as a pretext to “colonize” or otherwise significantly interfere with the sovereign affairs of a State. Sometimes this is benevolent and sometimes malevolent. It is benevolent concerning the one exception to this rule where a State is persecuting a portion of its population. In that case, last resort may dictate that the offending State be temporarily taken over until the human rights abuses are stopped. But in our discussion of the responsibility to build or rebuild capacity to protect this is generally not what is at stake. Concerning the second problem, that increasing the capacity of one segment of a population may increase the likelihood of civil war or secession, I must admit that this is always a serious worry with any attempt to aid one part of a citizenry that has historically been persecuted or deprived of the ability to become self-sufficient. Indeed, when a people becomes self-sufficient, or sees itself as not dependent on another population, there is always the risk that this will increase the likelihood that the newly self-sufficient population will sue for greater levels of self-determination, including breaking away from the rest of the population, either through violent or diplomatic means.27 Such a possibility cannot be denied. But it must also be recognized that the risk of this happening is offset by 27 See Christopher Heath Wellman, A Theory of Secession, NY: Cambridge University Press, 2005; and Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford University Press, 2004.

160

R e bu i l di ng

the good that is accomplished when a people is no longer oppressed and comes to be able to fend for itself. Of course, movements of self-determination are not necessarily a bad thing in the international arena, even if it takes a civil war to resolve the difference between those who want to secede and those who want this population group to remain connected to a historical State. Not all marriages last forever and not all States remain with the same population groups forever either. In an abusive marriage, sometimes it is for the best that a break-up occur. Similarly, when there has been a history of one part of a population oppressing another part, perhaps the best solution is for the two parts to be separated. In any event, it is not always an unmitigated bad thing that a segment of a State secedes, even violently, once it has seen its capacity to protect itself enhanced or rebuilt by the efforts of other States, or by the society of States acting jointly. Concerning the third problem, there are indeed practical difficulties to be overcome, just as is sometimes true when intervention is resisted by a person who does not wish to be more in control of his or her life, fearing that this will usher in a new person altogether. These practical difficulties should not be underestimated. And we should not underestimate the worries that a given State that achieves more capacity will be seen as a very different State than it was before. If the previous incarnation of the State was one where security and other related matters were easily taken care of, any change in the character of the State may indeed be feared since openness often makes security matters more difficult within a State. There are indeed risks when a State engages in change. But if the change involves increased empowerment, it is not very likely that the State will have less rather than more ability to confront its security threats. For this reason most States will not complain about this type of interference. And we should not forget that internal threats are often more significant than external threats. The Responsibility to Protect’s third prong is aimed at providing States greater capacity to thwart or prevent one of the most significant of these threats, namely the mass atrocities that arise due to ethnic or religious tension within the society. The fourth problem returns to the issue of how moral and legal norms intersect and also how they diverge. The moral norms that undergird the Responsibility to Protect, especially its third prong, seemingly call for strong intervention to make States more autonomous. But the legal norms that are suggested by the Responsibility to Protect do not necessarily call for strong intervention. Indeed, given the possible problems with intervention, even of the third-prong variety, I believe that it would

Rebuilding and collective responsibility

161

be a mistake to have strong legal norms of intervention of the sort some have called for. Legal norms, which set duties with attendant penalties for nonfulfillment, are not normally grounded in moral considerations alone. Attention must also be paid to the practical issues of the effects of implementing a coercive norm. Morality is not generally dependent on coercive norms, although of course moral norms are assumed to have motivational force. This is one of the salient differences between legal and moral norms – law is backed by coercive sanctions that often impose liberty-limiting demands on those who violate the law, whereas morality is backed by much more amorphous sanctions, if sanctions are the correct terminology. The sanctions of morality are largely those of the operations of custom and conscience. Custom is itself backed by social pressure of various forms, such as guilt and shame instilled by one’s fellow community members when one violates a moral norm. But when social pressure takes these forms it really is operating through the medium of a given person’s conscience. Conscience is a form of self-sanction.28 There is a sense that States can be influenced by conscience. Of course, I am here thinking of the conscience of the people who compose a State, especially its leaders. It may well be a good thing to try to motivate a State by appealing to the conscience of the State’s leaders, but the law is not normally a good mechanism for such motivation. I am supportive of the idea that there should be a plurality of norms at the international level. But I am also leery of the often assumed linking of moral and legal norms at the international level. In particular, it is sometimes asserted that the strength of the immorality of an act is such that it should trigger a legal response, such as in the case of crimes against humanity or genocide. While morality and legality obviously overlap in some respects, each is best suited to a particular range of cases and of remedies. There are practical, conceptual, and normative reasons to keep morality and legality separate even as we acknowledge the domain of their overlap. The responsibility to build or rebuild capacity to protect is the least controversial and in many ways the most likely to be successful aspect of the general Responsibility to Protect doctrine. I have argued in this chapter that it is best seen as a relatively benign responsibility to provide aid that should be seen as a form of collective responsibility that falls 28 See Larry May, “On Conscience,” American Philosophical Quarterly, vol. 20, no. 1, January 1983, pp. 57–67.

162

R e bu i l di ng

in a distributed way on the society of States, and most directly affects the leaders of States. Capacity to protect is a form of enhancing agency, especially joint agency, which can be accomplished in a variety of ways. I have suggested that the forms of this aid should not pose a burden on the State that provides the aid nor on the recipient State. And while there will be possibilities for abuse, as there almost always are in cases of intervention, abuse can be minimized by international oversight. In this way, the third prong of the Responsibility to Protect doctrine should be embraced by the international community (the society of States) as a positive way to produce an international rule of law where States are able to act in a timely manner to prevent mass atrocities within their borders.

ch apter 9

Responsibility to rebuild as a limitation on initiating war

In my previous writings I have argued that the justice of initiating war, jus ad bellum, should be understood as having limits based on certain considerations of the justice of tactics and strategies of war, jus in bello, such as whether a war is likely to be fought in ways that violate the principle of discrimination or distinction.1 In the current chapter I argue that the justice of initiating war should also take into account certain considerations of the justice after war ends, jus post bellum, such as whether war is likely to result in such serious devastation that it makes it very likely that the principles of rebuilding and reparations will be violated. Very little good work has been done on jus post bellum principles, until quite recently, and even less good work has been done on how jus post bellum considerations relate to the other two branches of the just war tradition. The development of increasingly sophisticated and destructive weapons means that how war is likely to be conducted, and especially how destructive the war will be, should affect the justice of whether to initiate war in the first place. I will use this particular debate as a jumping-off point for looking at how jus post bellum principles, already discussed in detail in earlier chapters, might influence jus ad bellum principles. With the increased destructiveness of war come worries about whether and to what extent States will be able to rebuild after a war ends. As has been recognized for centuries, highly destructive wars are generally not likely to lead to a just and lasting peace. The chapter will have the following structure. First, I will summarize my previous argument in favor of seeing the justice of initiating war as limited by certain jus in bello considerations. Second, I will develop reasons in support of the jus post bellum principle of the responsibility to rebuild. Third, I will examine two commonly accepted types of war that are normally thought to be justly initiated and argue that they must be

  Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2007.

1

163

164

R e bu i l di ng

limited in scope so as to meet the jus post bellum principle of responsibility to rebuild. Finally, I will consider in detail several significant objections to my views. 9.1   l i m i tat ions on i n i t i at i ng wa r In my interpretation, the late sixteenth-century theologian and philosopher Francisco Suarez provided an important amendment to the Thomistic analysis of Just War. Thomas Aquinas had listed the elements in the initiation of a just war to be: (a) the authority of the sovereign; (b)  a just cause; (c) and a rightful intention.2 Suarez adds to this: (d) a proper method.3 Yet, this addition, as we will see, is a major change. When the conditions of jus ad bellum have a jus in bello condition added to them, then the character of jus ad bellum changes. The likely use of certain proscribed tactics can turn an otherwise justly initiated war into an unjust war, although as we will see this will not happen often. Jus in bello considerations appear to place restrictions, at least at the limit, on what counts as a justly initiated war. And in this sense, Suarez seems to think that if one is unable to contemplate waging a war with justified methods or tactics then one is unjustified in initiating the war in the first place. Of course, this is only a restriction at the limits since human contemplation and imagination are quite wide-ranging. But there are certain wars involving highly destructive tactics that would not be just even though they had a just cause, which is generally regarded as the core of jus ad bellum. One way to dispute my interpretation is to argue that Suarez only meant to indicate that jus in bello considerations have some application to jus ad bellum ones. But this is already to deny the independence of these two branches of the Just War tradition. 2 Thomas Aquinas, Summa Theologica, Pt. ii-ii, Qu. 40, Art. 1, trans. Fathers of the English Dominican Province, London: Burns, Oates and Washburn, 1936. 3 Francisco Suarez, “On War,” in Selections from Three Works (Disputation XIII, De Triplici Virtute Theologica: Charitate) (c.1610), trans. Gwladys L. Williams, Ammi Brown and John Waldron, Oxford: Clarendon Press, 1944, p. 805.

Rebuilding and initiating war

165

The principle of discrimination is the most obvious jus in bello principle to limit the justice of initiating a war. It may be that a State or non-State actor has a legitimate just cause to initiate a war, such as the overcoming of ongoing oppression. But it may also be that the only way such a war can be successfully fought is by targeting the civilian population of the oppressor. If this is known in advance, then on the basis of Suarez’s principle, such a war would be unjust even though it had strong prima facie moral grounds supporting it. The otherwise justly initiated war is seemingly rendered unjust since it is likely to lead to serious violations of the discrimination principle in the way the war will have to be fought. There are several ways to state how to reconcile these principles. One could say that the prima facie just cause is not an actual just cause because this just cause is limited by and ultimately undermined by the principle of discrimination. Or one could say that the just cause is legitimate, but that it is countermanded by the principle of discrimination in the overall assessment of jus ad bellum. Or one could say that a war must satisfy, quite independently, the principles of jus ad bellum and the principles of jus in bello. And that last formulation is the way the traditional doctrine is often expressed. But then the principle of discrimination considerations would only concern the justifiability of the use of certain tactics, not the initiation of the war. Regardless of which way one states the point, the jus in bello principle of discrimination acts as a limit on the justification of initiating war, the jus ad bellum. The genius of the Suarez addition, if I have him right, is that certain tactical issues actually affect whether one should initiate a war at all. In this chapter I will attempt to make Suarez’s position plausible. This analysis turns on the idea that in some cases at least it is possible to predict what types of weaponry will have to be used in order successfully to wage a war. These assessments obviously sometimes cannot be made, and then the bridging of the parts of the Just War tradition will also not be possible. But if it can be foreseen that a certain tactic will likely have to be used to wage a war successfully, and if the use of that tactic is impermissible by the laws of war, then the war itself should not be initiated. And in this way, the principles of jus in bello will limit the principles of jus ad bellum. Even though a war may satisfy the just cause principle, as well as other jus ad bellum principles, considerations of jus in bello might still make the initiation of the war unjustified. The Suarez amendment to the traditional Thomistic Just War doctrine is highly significant especially in those cases, as seems to be often true today, when it is sometimes clear in advance what tactics will likely be used.

166

R e bu i l di ng

As many authors have recently noted, there are conceptual and normative advantages of seeing the two main branches of the Just War tradition as related rather than as completely separate sets of normative considerations. Most of these authors have been arguing that the connections go the opposite direction from what I have above claimed.4 The standard way to argue is that what would be a just tactic in a justly initiated war can be an unjust tactic in an unjustly initiated war. While I have voiced strong objections to such a strategy, I am generally not opposed to the connecting of these branches of the Just War tradition. It seems to me that the better mixing is in the direction I have indicated, namely that the justice of tactics and strategies might render an otherwise justly initiated war to be unjust. I am of two minds about these matters. It would surely be simpler to leave each branch of the Just War tradition to deal with the issues to which it is best addressed. But this particular battle has already been joined by the large number of theorists who have recently argued for making jus in bello decisions about the use of weapons depend on jus ad bellum considerations about whether the war is a just or unjust one. Perhaps my reflections in this section could be seen as a challenge to those theorists: once we start mixing these principles, why not consider other mixings than those that are currently fashionable? In addition, I think that the current overemphasis on the just cause condition is wrongheaded. Just cause is only one of the jus ad bellum considerations and it is questionable whether it should even have pride of place in that branch of the Just War doctrine. When it is asserted that just cause should have pride of place in the other two branches, I am even more certain that something has gone awry. Indeed, at least one author has suggested that jus post bellum be determined on the basis of just cause calculations.5 In the next section I will pursue another way of connecting branches of the Just War tradition. 9.2  r e bu i l di ng a s a

jus post bellum

pr i nc i pl e

As I said above, Vitoria provides three canons of war, one of which is especially apt for the analysis I wish to provide in this chapter: 4 See Jeff McMahan, Killing in War, Oxford University Press, 2009; C. A. J. Coady, Morality and Political Violence, Cambridge University Press, 2008; David Rodin, War and Self-Defense, Oxford University Press, 2002; and Lionel McPherson, “Innocence and Responsibility in War,” Canadian Journal of Philosophy, vol. 34, 2004, pp. 485–506. 5 See Brian Orend, The Morality of War, Peterborough, ONT: Broadview Press, 2006, pp. 162–63.

Rebuilding and initiating war

167

When war for a just cause has broken out, it must not be waged so as to ruin the people against whom it is directed, but only so as to obtain one’s rights and the defense of one’s country and in order that from war peace and security may in time result.6

This actually corresponds to Vitoria’s analysis of jus in bello, but he then provides a jus post bellum principle that builds on this canon, namely that a conquering State should pay “satisfaction in equity … for the damages and wrong suffered.”7 Following Vitoria’s comment, I will focus on rebuilding as the most appropriate principle that is related to the worries about not ruining the people and providing equity as an important jus post bellum principle. Restrictions on wars that cause “ruining the people” go to the heart of what I want to examine in this chapter. A people can be ruined by being destroyed, by being subjugated, or by having their means of livelihood undermined, among other causes. When Carthage was sacked, and supposedly salt sown into its fields, the people were “ruined” for many years to come, and there was very little that could be done to restore them after the war was completely over. If a war cannot even be conceived as employing tactics that would not lead to a people’s destruction, then it seems to me that the war may be unjustly initiated even, in some restricted cases, if it is war to stop aggression by another State. Before giving more of the argument to support this view, let me say something more about the responsibility to rebuild, since this is now recognized as an important transitional justice principle. Gareth Evans has written important works on what is involved in the recent international movement to recognize a “responsibility to protect.” In his book on this subject, he has this to say about the third prong of the responsibility to protect: The responsibility to rebuild a society, in the aftermath of war or mass atrocity crimes that have torn it apart, has four interrelated but distinct dimensions … achieving security, good governance, justice and reconciliation, and economic and social development.8

Of course, there are even more basic issues such as rebuilding the physical infrastructure, as was one of the first objectives of the Marshall plan after the Second World War in Germany. Francisco Vitoria, De Indis et de Jure Belli Reflectiones (Reflections on Indians and on the Laws of War) (1557), trans. John Pawley Bate, Washington DC: Carnegie Institution, 1917, p. 187. 7 Ibid., para. 51, p. 184. 8 Gareth Evans, The Responsibility to Protect, Washington, DC: Brookings Institution Press, 2008, p. 149. 6

168

R e bu i l di ng

At the 2005 World Summit, a United Nations sponsored conference first articulated the Responsibility to Protect principles. A subsequent Peace-building Commission has set in place several recommendations to States as a means of implementing these principles. In part, these new directions in international law were motivated by failures in Iraq and other societies to emerge from war or mass atrocity any better able than they were before to deal with such crises in the future. One normally cannot simply impose a new social structure on a country, but rather one has to give the country the tools it needs to rebuild itself. As has been known since at least the time of Rousseau, such things as forced democratization, for instance, are unlikely to work. It also does not work to employ extremely destructive means during war and then expect that a country will easily rebuild, even with help from the international community, after the end of war or mass atrocity. The prohibition on ruining a people, or their country, is not the same as the principle that a victorious State or non-State actor has an obligation to rebuild, but they are closely allied. In some cases, such as the supposed sewing of salt into the fields of Carthage, we have a good example of a tactic of war that results in such ruination that it is nearly impossible to meet the rebuilding principle. When the economic or political infrastructure of a society has been decimated, it may take a very long time, if that, in order to rebuild. Looking ahead to the post war situation from the standpoint of initiating the war, it should be clear that normally one should not start a war that will have such devastating effects on the economic or political infrastructure that rebuilding, except in the very long run, is undermined. A jus post bellum principle, such as the responsibility to rebuild, could limit jus ad bellum considerations by forcing people to think beyond the traditional reasons for justly going to war. In addition, one should focus on what the pursuit of those otherwise justly initiated wars is likely to mean for a post war situation where it is expected that rebuilding will be accomplishable in the short, not very long, run. If it could be predicted in advance that certain tactics would likely have to be used for a successful waging of a war, and those tactics would be devastating for the population of the State being attacked, then we have a first glimpse of how jus post bellum principles could affect the jus ad bellum. Devastation of a population is the kind of consequence of war that is in violation of jus post bellum normative principles, since rebuilding both infrastructure and the rule of law is adversely affected. And consideration of certain

Rebuilding and initiating war

169

other adverse consequences of war should also play a role in determining whether or not the initiation of a war is justified. Here is another example. Thomas Hurka and others have argued that it may be justifiable to kill 10 or even 1,000 enemy troops in order to save the life of one of one’s own soldiers.9 On the assumption that one’s own soldier is fighting a just war, the lives of enemy soldiers are to be discounted to such an extent that they barely count at all in jus in bello proportionality considerations. While I have disputed Hurka’s proportionality analysis,10 some have seemed to be persuaded by him, especially his reference to a similar incident in the popular movie “Saving Private Ryan.” But many of my students over the years have found Hurka’s claims to be counterintuitive. Considerations of jus post bellum help us to see why so many would have trouble with “Saving Private Ryan’s” disregard for the lives of enemy troops. In light of the conflicting intuitions about the tactics here, I think that one should also consider this case in light of jus post bellum considerations. Consider the post war principle of reconciliation. At the end of a war, it is part of justice that both sides strive for political reconciliation, where a large part of reconciliation concerns achieving mutual respect.11 And if reconciliation is not possible then it appears that jus post bellum justice cannot be satisfied. Now it doesn’t take much imagination to see that a tactic such as that employed in “Saving Private Ryan” cases will make it very hard if not impossible for reconciliation to be achieved after the war is over. If one side is perceived as caring so little about the lives of soldiers on the other side that it would approve the killing of 1,000 of them in order to save the life of one of its own soldiers, it will be very hard to attain reconciliation given the blatant disrespect that had been shown toward the lives of the State’s citizens. If for no other reason, the tactic that Hurka seemingly supports runs afoul of the jus post bellum principle of reconciliation. Also consider the case of how child soldiers are to be integrated back into a normal life so that peace is likely to be sustained. Here we might ask about the principle of rebuilding, especially rebuilding of respect for the rule of law. One strategy has been to grant amnesty to such child soldiers in places like Sierra Leone and the Congo. A study found that after disarmament, disengagement, and reintegration (DDR) of 9 Thomas Hurka, “Proportionality in War,” in Larry May and Emily Crookston (eds.), War: Essays in Political Philosophy, NY: Cambridge University Press, 2008, pp. 127–44. 10 See Larry May, War Crimes and Just War, NY: Cambridge University Press, 2007, ch. 10. 11 See ch. 7.

170

R e bu i l di ng

soldiers, 93 per cent of ex-combatants of all ages reported no problems of acceptance.12 Mark Drumbl comments: “Prima facie, then, eschewing accountability and responsibility conversations in the case of child soldiers, and clinging to collectivized beliefs that it is ‘not their fault,’ might constitute an effective reconstructive strategy. This interpretation, however, remains contested.”13 One could wonder, as does Drumbl, about how respect for the rule of law will emerge from not holding people, even child soldiers, responsible for the commission of horrible crimes. Here it is a concern for the principle of retribution, discussed earlier in this book, which would limit strategies for how we regard the tactics employed in bello. Historically, amnesties have had a checkered reception. They were issued in Athens in many cases where there was a change of rulership, but they were also often condemned, since the victims and their families wanted to be able to see “justice” done.14 And in a famous case in South Africa, the family of Steve Biko tried unsuccessfully to challenge the Truth and Reconciliation Commission’s grant of amnesty to the perpetrators of apartheid. Here we have conflicting principles of jus post bellum. As I have been describing the possible conflicts among principles of the Just War tradition, I have been focusing on the conflicts at the margins. By this I mean that it is only in the most extreme cases that a post bellum principle like the principle to rebuild should thwart the pursuit of a just cause. And this is as it should be. Only when a tactic, or pursuit of a just cause, is so ruinous of a people or its country should these jus post bellum principles limit the jus ad bellum or jus in bello principles. In this sense, the way that a jus post bellum principle limits another principle of the Just War is itself restricted to the rarest and most extreme situations that really only occur at the margins, not in the majority of cases. I will return to this specific issue of how few these cases are likely to be later, but that they do place limitations at the margins is the issue, and in the next section I will attempt to make this claim more plausible. 12 Marcartan Humphrey and Jeremy Weinstein, “Demobilization and Reintegration,” Journal of Conflict Resolution, vol. 51, no. 4, 2007, p. 542. 13 Mark Drumbl, Not So Simple: Child Soldiers, Justice, and the International Legal Imagination, Oxford University Press, 2011, ch. 7. 14 See John Elster, Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, 2004, ch. 1.

Rebuilding and initiating war

171

9.3  i n i t i at i ng wa r a n d r e bu i l di ng There are several types of rebuilding that have been featured in recent debates about transitional justice. As I said, the United Nations Secretary General has endorsed what has been called the Responsibility to Protect. And part of that responsibility is the responsibility to rebuild. Chief among the things to be rebuilt after the devastation of war is a society’s infrastructure that has been decimated, as well as the capacity of a society to act to secure the rights of its people. Rebuilding the capacity to protect the population is one of the keys to being able to protect a State’s citizens when the next war or atrocity arises. Rebuilding devastated infrastructure also plays a similar role in allowing a society to recover sufficiently from a war or an atrocity to be able to defend itself or part of its population in the future. There has been a debate over the centuries concerning what counts as just cause, with earlier periods finding strong support for punishment as a just cause, and contemporary theorists generally discounting such just causes.15 Some just causes, such as self-defense are as old as history itself. Other just causes, such as waging war in defense of States that cannot defend themselves, have gone in and out of fashion over the years, with Augustine defending them but many others highly critical of them. Yet, it is fair to say that there has been quite a lot of consensus over viewing just cause as the most important of the jus ad bellum principles. The traditional basis for a just initiation of war I wish to consider is a specific form of self-defense, namely defense of a State’s territory from seizure by another State. Let us suppose that the only way to stop an invasion is to use, or threaten to use, weapons of mass destruction, such as a nuclear bomb. Fending off an invasion, where it is loss of territory or enslavement of a population that is at stake, has been traditionally recognized as a just cause to go to war. The territorial integrity of a State was the main basis for understanding a State’s sovereignty. And attacks on a State’s sovereignty were one of the prime things that a State had the right to go to war to defend against. But, as I have been arguing, jus post bellum considerations seem to place limits on just initiation of war in some cases, and perhaps such a limitation would make sense in this case. In a case of self-defense using nuclear weapons, proportionality, both ad bellum and in bello, may be satisfied. For it may be that the protection 15 See Larry May, Global Justice and Due Process, Cambridge University Press, 2011, ch. 8.

172

R e bu i l di ng

of the territory is linked to sustaining the economic livelihoods of many members of the targeted State’s population. Indeed, this was one of the traditional reasons for thinking that sovereignty was to be identified with territorial integrity. But it will be very difficult to satisfy the jus post bellum principle of rebuilding of what has been devastated since the use of the bomb will leave the kind of devastation that will last for decades if not centuries, as was true of the use of the atomic bomb at Hiroshima and Nagasaki. Here jus post bellum considerations of rebuilding seem even to limit self-defense. I say that this is how it seems, but this is already to admit that this case will sit uneasily with most people who consider the morality of war. I do not want to undermine the rights of a State to engage in truly self-defensive actions. But I would nonetheless note that the United Nations Charter, in Article 51, already does set some limits even in some cases of self-defense, namely that the right to attack lasts only as long as the United Nations itself has not acted. And in any event, what often is said to count as self-defense is often subterfuge for other less laudable goals. Add to that the fact that there is almost always a choice of arms. Thus it can be seen that self-defense is not always overriding. When taken in that context, I do not think it preposterous to suggest that some cases of self-defense should be discussed in the context of jus post bellum principles such as the principle to rebuild, especially the rebuilding of the rule of law in war-torn societies. Next consider a recently recognized just cause, namely, the defense of a group of people within a State who are experiencing mass atrocity at the hands of the majority population within that State. Let us assume that to disrupt the atrocity would have required a war that curtailed the freedom of the entire or a majority of the population. Perhaps this is because the atrocities are committed, as they were in Rwanda, by dissemination of information from government leaders to the various party officials and media sources that then disseminated hate propaganda to the general population where the killings were incited. In the Rwandan case, it was unclear what would have stopped the genocide once it got started except massive military efforts from outside Rwanda to curtail the freedom of the members of the population.16 In such cases of war waged to stop an atrocity, the capacity to protect rights of the various groups within the population may be so disrupted by 16 Some have suggested that bombing the radio station responsible for years of hate mongering in Rwanda would have had a significant effect. Yet, to be able to do so would have required good intelligence on the ground, which appears to have been missing.

Rebuilding and initiating war

173

the war that the jus post bellum principle requiring rebuilding of capacity to act to protect a State’s citizens is violated. This capacity may be harmed when it is necessary to incapacitate that same population as the only way to stop its perpetration of an atrocity against that State’s minority population. For example, when the judicial infrastructure or the institutions of government are destroyed by war, the ability to respond to future attacks on minority rights may be so severely limited that in some sense the war should not have been initiated in the first place, at least from the post war standpoint. In this sense, what post war considerations do is to make States think beyond the objective of the war, and even beyond the likely tactics to be used, to see whether the war is worth fighting from the perspective of what things will look like after the war is over. Of course, a good argument could be mounted that saving 800,000 lives in Rwanda by a massive military invasion that curtailed freedom would still have been worth it. My point is only that considerations about how the war will end are relevant to deciding whether it is just to initiate a given war. Let me say just a bit more in defense of the jus post bellum principle of the responsibility to rebuild. States may think that they have various duties to help those who were wounded or captured, but not see that they have additional responsibilities at the end of war as well. Rebuilding of physical structures that have been destroyed may seem not significant enough to warrant restrictions on just initiation of war. But in fact physical structures are not primarily what the responsibility to rebuild concerns. The UN recognizes the responsibility to rebuild capacity as one of the main parts of this jus post bellum principle. And the capacity to protect concerns the ability to sustain the institutions of the rule of law as well as to be in a position to stop aggression or mass atrocity in the future.17 When such a capacity is undermined it is vitally important that it be rebuilt quickly. And when it has been damaged to the point where it cannot easily be rebuilt, this is a consequence of war that can color the whole of the war, and even taint the otherwise just basis for initiating war. 9. 4   obj e c t ions In this final section I will consider several objections that could be raised against my view. The first objection to consider is that I have failed to see that wars should sometimes be undertaken for a just cause regardless of

17

  See Evans, The Responsibility to Protect, especially p. 150.

174

R e bu i l di ng

how much destruction will be had, or at least only in conformity with the jus ad bellum principle of proportionality. To tie the hands of those who oppose oppression, for instance, is a dangerous principle. The idea that otherwise justly initiated wars could be limited by jus post bellum considerations is dangerous in that it will make States feel less likely to go to the aid of other States that are being oppressed, or worse yet that they will hesitate in defending themselves from aggression thereby making the aggressor more likely to be able to achieve its illegal or immoral objectives. In the end all that my proposal will do, so the objection goes, is to reward the bad behavior of some States and non-State actors. Surely, so the objection would continue, it is enough to make sure that the jus ad bellum principle of proportionality is satisfied, that is that the aim or cause of the war is more significant than the likely harms that are caused by engaging in the war. This first objection correctly notes that my proposal is not merely that we underline the importance of proportionality between just cause and effects of war. What I am suggesting is that if the predicted effects of war are such that a people or country is decimated, beyond the ability to rebuild in the short term, then even extremely important just causes may not be sufficient to make the initiation of war just. While this may seem to be a counterintuitive result of my view, I will make an argument in its support, which considers countervailing intuitive considerations. I would begin by pointing out that it is not unusual or counterintuitive to think that there are some limits on wars that have just causes and that satisfy the other jus ad bellum principles of the Just War tradition. Most prominent is the widely accepted prohibition on so-called “total war,” where the effects of war would involve the total annihilation of a country. Such a limitation on wars with just causes cannot be understood simply as an application of the jus ad bellum proportionality principle, since the party that wages a war of total destruction may itself face a similar fate if it does not engage in the war. Indeed, the prohibition on “total war” goes well beyond the considerations of jus ad bellum proportionality. And this should give some support for the idea that the kind of jus post bellum limitations I have been considering may not be so easily dismissed as being counterintuitive. Also, I think it is intuitively plausible to hold a State or non-State actor to a higher standard, if it initiates a war, than a State that is attacked, even if the one attacked is somehow in the wrong, perhaps by having provoked the attack. Some would probably want to hold the provoker to the higher standard and always to give the benefit of the doubt to the State

Rebuilding and initiating war

175

that would wage a war with a just cause. In general, I would agree, and have so argued previously.18 But when a State knows it will likely have to wage a very destructive war it should have a heavy burden to prove that there are overriding factors to the predicted destruction and corresponding inability to achieve a just and lasting peace. This does not mean that otherwise justly initiated wars are likely to be rendered unjust often by this calculation, but only that jus post bellum considerations should be given due consideration. A second objection is that I have misunderstood the way that Just War principles operate. Jus ad bellum principles must be satisfied for the initiating of a war to be just. Jus in bello principles must be satisfied for the waging of a war to be just. And jus post bellum principles must be satisfied for the ending of a war to be just. All of these principles must be satisfied for a war in general, and all things considered, to be just. So, of course it is true that just cause is limited by such things as the responsibility to rebuild when we are thinking about the justice of war in general. The objection is that I have confused the justice of the war in general with the justice of the war’s various parts. The considerations I have been discussing, having to do with jus post bellum normative principles, are of course relevant for the justice of the war in general. But, so this second objection goes, it is a mistake to think that these jus post bellum considerations are relevant for the initiation of war. My response to this second objection is to acknowledge that the idea of the justice of war is ambiguous in that it can refer to any of the three stages of the war: the initiation, waging, or ending of a war, as well as to the war taken as a whole. It is though my contention that the justice of initiating war can be affected by the way war is waged or ended when it is impossible, or very unlikely, that a war once initiated will be able to be justly waged or justly concluded. If the war cannot, or is very unlikely to, be waged or concluded in a just way then it may also be true that the war cannot be initiated justly either. Initiation of war cannot be cabined so as to render irrelevant how it is likely that the war will end. Indeed, the jus ad bellum proportionality principle already calls for considerations that look ahead to the conclusion of the war and require a consideration of jus post bellum considerations at the time that the war is actually begun. In any event my proposal is not as radical a departure from the Just War tradition as it may at first seem, since this is a doctrine for the margins or extremes.

  See Larry May, Aggression and Crimes against Peace, ch. 10.

18

176

R e bu i l di ng

I seek only to link the various stages of the war in a way that, at least at the margins, will make sense of the doctrine as a whole. I do not follow those who have recently argued that jus in bello is always governed by jus ad bellum considerations, in the sense that all considerations of the justice of tactics are governed by whether one is on the side of the just or unjust initiators of the war. Instead, I believe that the overlap of these components of the Just War tradition happens only rarely. In this way, I recognize the relatively independent justice considerations of the three stages of war, as well as the status of the justice of war taken as a whole. But I do not see the branches of the Just War doctrine as completely separate from one another either. It appears that little is lost if one takes the post bellum considerations I have focused on and understands them as affecting the justice of the war as a whole, rather than merely bearing on the justice of initiating the war. Practically this may be true especially if one realizes that it will happen only rarely. But I wish to point out that conceptually it makes little sense to say that war can justly be started if one knows that the war will not end justly. It is as if the initiation of war could be understood as itself a discrete act that is unrelated to the consequences of the act. Or in light of the jus in bello, it is as if beginning something is completely isolatable from doing it. The metaphysical assumptions here are too contentious to be accepted without serious argumentative support. A third objection is that I have not properly taken into account how hard it is, in nearly all cases, to predict what will be the post war situation. And because of this extreme practical difficulty, the thesis that I have advanced is nearly useless. It will either be true that a war’s defender will be able to claim that the devastating results of war that actually took place were not predictable and hence not something that should count in the assessment of the justifiability of initiating a war. Or a critic of the war will always be able to say that such effects should have been predicted by anyone who really cared about jus post bellum principles. But it will not be possible to settle such disputes because of the difficulty of making these predictions, or of establishing what was, or was not, predictable in advance. I agree that predictions of how a war will end are often hard to make. This is one of the reasons that I have argued that the doctrine I am defending will only rarely come into effect. It is only in the most extreme cases, where it is obvious, or nearly so, that a war will end with such destruction of the people or country that rebuilding will only be accomplishable in the very long run, if at all, that I have argued for the jus post bellum limitation

Rebuilding and initiating war

177

on jus ad bellum. Think again of a war that can only be successfully waged with the use of atomic or nuclear weapons. One can easily predict, in this extremely rare case, that the effects on the country or people in it will be so devastating that rebuilding can only be accomplished in the very long run. In such a rare case, it seems that the predicted destructiveness of waging the war should have some bearing on the justifiability of starting the war in the first place. Perhaps the better way to put the thesis is that when it is easily predictable that a war will have devastating effects on a people or a country then this should count in the jus ad bellum assessment of the justifiability of initiating that war. If the critic is right then it is only in a few cases where this will matter practically. But conceptually this may nonetheless focus us to see that the effects of war are potentially relevant to the justifiability of starting a war. And it is in this way that the conceptual pieces of the Just War tradition form a coherent larger whole. My idea here is that analyzing things into component parts is generally a good idea, unless one loses sight of the larger whole by such analysis. The insight that I derive from Suarez is that we should hold in the back of our minds the jus in bello, as well as the jus post bellum consideration, at the same time that we focus, as we should, also on the jus ad bellum. A fourth objection is that I have elevated a dubious jus post bellum principle to the point where its status is vastly greater than its actual value, even in the scheme of jus post bellum principles. This is especially apparent in my use of the responsibility to rebuild, so the objection goes, since this principle has only been recognized in the last five years as part of the socalled Responsibility to Protect, itself a highly contentious doctrine that has not garnered widespread support in the international community. Of course, rebuilding should be the responsibility of States after war ends, but it shouldn’t be such that it can render unjustified a war that otherwise is fought for a just cause. By comparison, the doctrine that self-defense is a just cause has itself been uncontroversial for at least 1,500 years. The responsibility to rebuild is indeed only recently recognized as a normative principle of the Just War. This principle is not primarily directed at physical infrastructure. Rather, the rebuilding in question is directed at a capacity to protect. Whether in a just war or not, States that conquer other States have a responsibility to bring the vanquished State to the point where it can protect the human rights of its citizens. This typically involves rebuilding, or building, a rule of law with appropriate legal and political institutions, rather than merely rebuilding physical structures. Of course, in most cases, rebuilding physical infrastructure is also very

178

R e bu i l di ng

important. But this is because it is necessary for a State to regain its ability to fend for itself, and most importantly to have the resources to stop aggressive wars or mass atrocities in the future. And it should be noted that the duty to advance the rule of law has also, like self-defense, been recognized for a very long time indeed. One of the most important components of the responsibility to rebuild is that a State also needs to have the will to stop one portion of its population from oppressing another portion of its population. Some have suggested that this means that democratization should have pride of place in the responsibility to rebuild and the more general responsibility to protect. And while this is surely one of the best ways for a State to attain the capacity to resist oppression from within, it is not the only means to this end. As I have argued elsewhere, courts or other institutions are needed to guarantee such procedural rights as habeas corpus and nonrefoulement, as a means to make sure that people are not tortured in secret prisons or sent overseas to such prisons.19 In addition, there must be political and legal institutions that have as their goal the protection of other basic substantive rights. A fifth objection is that I have set things up so that a very wealthy State will be more likely to be justified in going to war than a poor State because the wealthy State will be able to rebuild in ways the poor State will not. Such a strategy favors those wealthy and strong States that have sometimes been the most irascible aggressors. And in any event, whether a State has the right to go to war should not turn on how wealthy or powerful that state is. Jus ad bellum determinations are supposed to be about justice not about matters such as who is wealthy enough to rebuild at war’s end. While this objection may be relevant in a few cases, there are so many other factors that go into the determination of the justice of initiating war that I don’t think that this objection is a major practical consideration. But I admit that as a matter of principle this objection is worrisome. It is for this and other reasons that I advocate, in chapter 10, that the world community be the appropriate party to make war reparations and to aid in rebuilding. Yet it is true that I have advocated that the State that initiates war should have a special responsibility to rebuild and that if it is unlikely to be able to do so this will indeed affect whether it is just to initiate war. Whatever unfairness there is to this implication of my view is

19

  See Larry May, Global Justice and Due Process, especially ch. 10.

Rebuilding and initiating war

179

hopefully overridden by the fact that less wars are better than more wars, which is the situation that my proposal is ultimately aimed at. It is important also to make clear how I stand on a somewhat related objection, namely that it appears that post bellum considerations could render an otherwise unjust war just. In my view, this is certainly not an implication of my view. Adding conditions to what is necessary for a war to be just does not mean that the other conditions do not have to be met as well. All the conditions need to be met for a war’s initiation to be just. So, when I, following Suarez, add an additional condition, the fact that it is satisfied does not then make it easier for the other conditions to be met, and thus does not make it easier for the war’s initiation to be just than if the condition were not added. A final objection is that the normative principle of rebuilding does not properly recognize the legitimacy of sovereign State immunity. While it may be a good thing, as a matter of charity, for one State to go to the aid of another, it is a mistake to make this into a duty or responsibility of that State. What seems to be imagined is a World State where each State has duties toward each other as if they were bound together into a common society. Such a view is not realistic and in any event, so the objection would go, is dangerous in that it undermines the authority of States to make their own decisions and especially to decide how and when to allocate its resources in behalf of other States. I do not subscribe to a full-blooded cosmopolitanism and do not mean to suggest that the Responsibility to Protect should be undergirded with reference to that normative theory. Instead, I believe that there is a very loose society of States, to use the Grotian rather than the Vattelian term. I fully agree that States must be strong as the best way to make sure that human rights are protected and atrocities diminished if not prevented. But even a loose society of States will place responsibilities on their members. And the responsibility to rebuild is one of these international responsibilities. The idea is that the international community is a better place if a State has the capacity to protect itself, from internal as well as external threats. Whether one is a cosmopolitan or not, one must recognize that many States have been a positive resource in the global fight for the protection of the most basic human rights. And when a State is too weak to stop oppression of its people, or seemingly too strong for its people to stop it from conspiring in that oppression, international resources will have to be used to intervene. A State’s capacity to protect its people is intimately entwined with its capacity to sustain rule of law institutions. In the

180

R e bu i l di ng

aftermath of war, sometimes these institutions need to be rebuilt. If the war’s devastation of these institutions is too great such recovery may take a very long time. And in that case, it is best to think that the war should not have been initiated, despite the appearance of a just cause. Throughout this chapter I have argued that jus post bellum principles, such as the responsibility to rebuild, should be kept firmly in mind even as decisions are made about whether or not to initiate a war. A consideration of these principles will indicate, at least in the extremes, whether a war really is worth fighting. Just causes, standing alone, have been regarded for too long as the main basis for determining which wars are indeed worth fighting for. The burden of this chapter has been to show that at least in some cases jus post bellum considerations, such as the responsibility to rebuild, needs to be thought of as limiting the justice of initiating war.

pa r t I V

Restitution and reparation

c h a p t e r 10

Restitution and restoration in jus post bellum

Restitution is the restoring to the rightful owner what has been lost or taken away. Reparation is the restoring to good condition of something that has been damaged. Both categories, restitution and reparation, at least according to Webster’s Unabridged Twentieth Century Dictionary, have the same root, restoration. But each emphasizes different aspects of the idea of restoring. In discussions about jus post bellum, these concepts should not be confused or simply equated. Restitution is normally about justice concerning two parties: a wrongdoer and a wronged party. Reparation is about two parties as well. In some cases, as we will see, the parties who should provide restitution or repair are different from these two parties. Sometimes achieving justice involves a damaged party and others who can correct the damage, not necessarily the one who caused the damage. The one who has caused the damage is not alone the one who has a duty of restitution or repair. I will attempt to develop these ideas in some detail in this and the next chapter, as well as indicate how they can be understood as normative principles of jus post bellum. This chapter will proceed as follows. First, I will discuss the general idea of restoration as it relates to the idea of a status quo ante. Second, I will offer an account of restitution along with some examples. Third, I will give a specific analysis of restitution in the context of war. Fourth, I will discuss one very important controversy, namely who is responsible for providing restitutions in the aftermath of war, and how might the costs of wars be spread to those who did not perpetrate the harms of war. In this section I will propose a normative principle of restitution. Finally, I will address some objections to the view I have here set out. 10.1   r e s t or at ion, r e c t i f ic at ion, a n d s tat us quo a n t e To restore something is to return it to a previous state. This is to say that it is to return that thing to its status quo ante, namely the situation it was 183

184

R e s t i t u t ion a n d r e pa r at ion

in before it was damaged or lost. But when restoration is discussed as a moral concept there is the additional idea that a wrong is being rectified by this restoration. Rectification is one of the most important moral means to right a wrong. Rectification is to set the scales right which is the key to at least one prominent form of justice. But restoration is nearly always not something that can be completely performed since we cannot literally turn the clocks back to where things were long ago. When an old car is restored it is brought back, as close as one can, to its original condition, but there is always something new that is different from the old, perhaps because they simply don’t make that part anymore, or if they do it isn’t exactly the same in any event. The idea of a status quo ante is thus a complex one. If it is not possible to restore the thing to its original condition, then perhaps some other form of compensation is required to right the scales, such as interest that the stolen money could have earned if it had not been stolen from the original owner. Or we might think of the concept of opportunity cost, namely what the rightful owner could have accomplished with the object had it not been stolen. But things can go the other way as well, so perhaps the stolen good is a stock that would have subsequently lost half of its value if the stock certificate had not been stolen. Here the status quo ante appears to be less than the original value. And rectification might require, as a matter of justice, that we take account of gains that might not have occurred, such as when one is motivated to work harder to make up for what had been stolen. Or perhaps the car that was stolen would have been stolen at a later time but then the robbers would have harmed the driver as well as stealing his car. Without a car to steal, the original owner is left unharmed when the status quo ante would involve him being harmed. Some have argued that restitution should not have this risk of loss connected to it. After all, the person who stole the object did something wrong and certainly now shouldn’t be allowed to profit from this wrongdoing. The rectification part of restitution requires that the injustice of the loss or damage be recognized, and this seems to rule out letting the party who caused the loss or damage partially off the hook because the thing stolen or damaged would have lost value in the meantime. So, we ask that the object be returned or that the damage be literally repaired as the first step toward restoration, and only allow the wrongdoer to provide something else if the first step is blocked by factors beyond the control of the wrongdoer. And then as a second step we disregard what has or would have happened in the negative, looking only to positive gains that could have occurred, for the secondary form of restoration. The wrongdoer takes

Restitution and restoration in jus post bellum

185

his objects as he finds them and must return them as close as possible to the original, discounting any losses that might have occurred to the rightful owner if the object were not stolen. Restoration is a means of rectification that can itself take several forms. For restoration to be morally corrective it must in some sense reflect the idea that wrongdoers should not be allowed to profit from their wrongdoing. And the forms of restoration are merely keyed to what sort of loss one has experienced. As I said above, if the loss is the possession of a thing, then the loss is understood to trigger restitution. Or if the loss is some sum of money that one still would have had but for being forced to spend it, the loss is also understood as one that triggers restitution. If the loss is that one still retains the thing but it has now been damaged, then this is understood to trigger reparations. Damage can be understood quite broadly and can include things like a person’s reputation or even a person’s otherwise happy state of mind. One of the salient moral concerns is that the wrongdoer not be allowed to benefit from his or her wrongdoing. So, if I can restore your car’s paint job that I have intentionally damaged by a cheaper, and not as good, means than was used in the original painting of the car, I should not be allowed to do so, because that would not involve a return to the true ­status quo ante. If such a true status quo ante cannot be achieved, then additional compensation is due beyond merely making the thing damaged as close to the original as is possible. When rectification involves restoration, money rather than goods might have to paid. But, using the same example, if the paint job on your car was already quite old and I damage it, I should not now be required to make it look new. The status quo ante is taken fairly literally to be the return of your things to the “same” condition they were in before the damage. Thinking now not about reparation but restitution, the return of the thing that was stolen or lost must be effected in a way that gets the person back either the very same thing lost or its equivalent in money or something else valuable  – and the wrongdoer does not get to choose the form of compensation. The status quo ante is, in the first instance, regaining possession of that which one had been dispossessed of. And if the thing cannot be returned, or at least not returned in a usable fashion, then the second-best arrangement is that something of comparable value, normally in terms of money, should be paid to the one who has experienced the loss. Once again, all of this is governed by the idea that a wrongdoer should not be allowed to profit from his or her wrongdoing.

186

R e s t i t u t ion a n d r e pa r at ion

Another very important moral principle connected to restoration and rectification is that the person wronged, the victim, be compensated in some fashion or other. This principle sometimes requires that we look to people other than the wrongdoers, especially in those cases where the wrongdoers cannot be found or where they lack the resources to rectify the harm they have caused to the victim. In this sense there is a kind of tension between the principle that wrongdoers should not be allowed to benefit from their wrongdoing and the principle that victims should be compensated. And when this tension exists, it may be that compensating the victim is thought to have priority in the sense that we leave the wrongdoer alone, or only penalize him or her a bit, and turn to third parties to provide compensation to the victim. In normal cases, the wrongdoer is not allowed to benefit since the wrongdoer must repay whatever benefit he or she accrued to the victim, thus compensating the victim. But in extraordinary cases, especially found in wartime or mass atrocities, even taking most of the benefit from the wrongdoer will not fully compensate the victim. In cases where the wrongdoer is either unknown or where the wrongdoer has suffered as well and now lacks the resources to pay compensation, there may not be sufficient resources obtained from the wrongdoer to compensate fully the victim. In such cases, justice may require that third parties pay compensation. Of course, it is controversial how to arrange such compensation programs so that they do not appear to be unfair and that they are practically workable given the facts of the world we live in at the moment. I will discuss this issue in greater detail in the next section and section 10.4. 10.2   t h e c onc e p t of r e s t i t u t ion As I said above, restitution is the restoring to a rightful owner of what has been lost or taken away. For restitution to be triggered, the rightful owner has to be wronged by the acts of another, either through intentional wrongdoing of the thief or by the unintentional wrongdoing of the person who finds a lost item and keeps it as his or her own. Of course, from the beginning here we can see that it might make a difference if one is an intentional or unintentional wrongdoer. But the central idea is that the one who has created the wrong has a duty to make amends by returning the thing taken to its rightful owner. This way of thinking treats the wrongdoer as the one who has causally created a situation where someone else suffers a loss, and who because of this wrongful act now bears the responsibility for restitution.

Restitution and restoration in jus post bellum

187

Restitution is the simplest concept associated with the longstanding general idea that wrongs are to be righted. If one has in one’s possession a certain good that properly belongs to someone else, then one has the responsibility to return that good to its rightful owner. And in this simple model it is the person who has benefitted, whether intentionally or not, who has the duty to make amends. There are other ways that restoration can occur, including by an act of a third party who finds the lost or stolen good in the possession of another and simply takes it away in order to give it back to the rightful owner. But the simplest model of restitution is to place the duty for restoration on the party who has benefitted from the position of loss of the wronged party. Normally the way one benefits is comparative – the rightful owner now lacks something that the wrongful occupier has and should give back. An initial question is whether or not the unintentional wrongdoer has such a duty and why this party is even called a wrongdoer. As I have indicated, we may wish to use a circumlocution and say that the party who has benefitted is the party who has played a causal role in bringing about another party’s loss, leaving open the question of whether or not this is truly a wrong. And the general idea here is that one should not be allowed to benefit by unjust enrichment. If the benefit is not associated with someone else’s loss, as in cases of windfall profits, there is enrichment but not unjust enrichment. Yet there may be injustice if one does not return the good after being made aware of its rightful owner. Injustice occurs when one benefits from another’s loss. And the actual state of injustice occurs whether one knows that one benefits or not. This is controversial but can be made less so by realizing that the use of another’s good for one’s own profit is something that needs to be made right – the classic indicator that an injustice has occurred. The crucial point is that once one is made aware of the injustice, one then must satisfy one’s duty of restitution. Otherwise, it will then make sense to speak of a wrongdoer, even if one unintentionally benefitted, since it is wrong not returning the item known to belong to someone else. So, on this account there are two ways that one is in the wrong when one benefits from having caused another’s loss. First, one can be a wrongdoer in that one intentionally caused the other’s loss. Or one can be a wrongdoer for not restoring the item lost to the person who has lost it. Indeed, one can be a wrongdoer in both of these senses if one has intentionally taken and now refuses to return the lost item. And it is also possible that one could be a wrongdoer in the first sense and not in the second although this is rare. I turn to this last alternative next.

188

R e s t i t u t ion a n d r e pa r at ion

In the history of these debates, one difficulty that has arisen is whether the unintentional beneficiary has duties that last as long as the good remains in his or her possession or whether the adverse possession of another party’s goods does not turn into a proper title with the passage of time. Think of someone who possesses my grandfather’s watch that was stolen from my grandfather five decades earlier. The person in possession of the watch did not steal it and does not know that he or she is benefitting from an act of wrongdoing. And even though it is clearly a wrong to the original owner, there are strong reasons to respect recent chain of title and to deny the ancient claim on the watch. Indeed, it may be said that since there was no wrongdoing by the current owner of the watch, there is no role for justice to play here. Yet, it seems to me that this is to take too narrow a view of justice – if there is a victim here then failure to rectify the victim’s loss is a kind of injustice, although not in the standard way that justice is linked to distribution or retribution. Here we have a violation of transitional justice, a topic to which I will return. Even in the case of intentional benefitting, there are some cases where the passage of time has been said to be enough to negate the wrongdoer’s duty in restitution. But the conditions for negating someone else’s claim to possession are hard to work out and more difficult yet to justify morally. The legal doctrine of adverse possession allows that if one has notoriously seized another party’s good and that party has not complained about what would otherwise be simple theft, and if a long time has elapsed (such as twenty years in many US jurisdictions), then one can get title to the object, at least if it is a parcel of land. Notice that the adverse possession must be public in the sense that the adverse owner does not hide the fact that he or she has seized someone else’s parcel of land. The idea of adverse possession, or of other types of possession gained by long custom rather than by clear title, is ancient in origin. Yet, the idea of adverse possession seems to fly in the face of the idea of restitution. The formal legal conditions of adverse possession in the United States make it clear that the original owner must not exercise his or her claims against what has been sought by adverse possession. And it is also necessary that the person claiming adverse possession make it publicly known that he or she is making such a claim and over a very long period of time. In this sense adverse possession has sometimes been likened to relinquishing of ownership or even transfer in that the original owner seems to care so little for his property that he or she does not object when someone else uses the property and makes open declaration of the intent to seize the property as his or her own in the future. It is as if the original owner waived

Restitution and restoration in jus post bellum

189

his or her rights and hence can no longer be said to have suffered a loss. For these reasons, it is not clear that adverse possession is completely at odds with the principle of restitution. Restitution and its related ideas have come into the debates about jus post bellum primarily as having to do with land seized during war. In addition, there has also been a debate about art and other valuable cultural objects seized during wartime. Here there is normally no sense that the objects have been seized as a matter of adverse possession, but only as spoils of war. Instead the objects taken are more closely related to theft and the principle of restitution is applied rather easily. Of course, it can be claimed that objects seized are to be used to pay war costs that a State was forced to pay in order to fight against an unjust aggressor. But that type of claim is normally independent of the claim of restitution. Who it is who has a duty to rectify in cases of restitution will be taken up later. Let us next examine several special problems with restitution that arise in wartime settings. 10.3   spe c i a l probl e m s i n t h e a f t e r m at h of wa r There are several relatively uncontroversial aspects of restoration in the aftermath of war. First, when a vanquished State has taken goods from the conquering State, this dispossession must be made right by returning the goods or something of comparable value. Second, when a vanquished State has caused the victorious State to expend resources to fight the vanquished State’s armies, these costs must be repaid. Third, when a vanquished State has caused damage to the victorious State or its allies, these costs also must be compensated. Fourth, when a vanquished State has caused damage to its own people, then, perhaps slightly more controversially, it must rebuild as a matter of justice. There is some controversy if it turns out that the victorious party was also the aggressor and the vanquished was defending, as a matter of jus ad bellum. But unless one thinks that justly initiating a war colors everything else about the war it will still matter if it is clear that one party, concerning a specific taking, is in the wrong about that taking. The main problems of restitution during war are of three sorts. First, there is the return of captured territory. Second, there is the return of cultural artifacts or other valuable matériel captured during battle. Third, there is the return of money spent to fight what was an unjust war on the part of the side from which compensation is sought. This third category bleeds into war reparations and will be covered in chapter 11. In

190

R e s t i t u t ion a n d r e pa r at ion

this section I will address the first two types of problem. In the first case, restitution of territory, one of the main problems concerns security. The second category has been problematic in many cases, since artifacts that are seized may be of questionable pedigree. Historically many wars were fought over territory. This is because ownership of territory is often contested. We need only to think of AlsaceLorraine, Palestine, the Falklands, and Suez, to name only the first to come to mind.1 So, initially to say that territory should be returned after a war ends, as a matter of restitution, is not as uncontroversial as it sounds. It may be that the cause of the war is a dispute over territory where it is claimed that one party is illegally occupying territory that properly belongs to another party. During the war, the second party seizes the land that it claims was illegally taken from it generations ago. In this case, the war was fought to get the property back into the hands of the rightful owners, and it makes little sense to say that at the war’s end territory seized should be returned as a matter of restitution. Because of such considerations, return of territory is sometimes a highly controversial matter as something that is required by restitution. Another problem with territory is that it may be seized during war in order to create a buffer between two hostile States. Unless, the hostilities have permanently ceased, which is difficult to foresee, it also may not make sense to demand as a matter of restitution that the territory be returned after the war is over. Recently, Israel for instance, has refused to turn over lands captured in wars with its Arab neighbors in order to keep a buffer between its own people and the Arab States that might continue to mount threats to Israel’s security. Here it is the security of the victorious State that is, and remains, a reason to think that it is counterintuitive that territory should always be returned at war’s end as a matter of restitution. For these reasons, restitution is not as easy a matter as it first seems, even if generations have not gone by as in the case of my grandfather’s stolen watch. I would amend the way that restitution is normally understood so that a large class of exceptions is allowed. Disputes about territory, like other forms of land disputes, concern something that is unique and irreplaceable. But in many cases, it may be better to substitute something for land in the requirement that restitution be paid at war’s end. Monetary compensation, rather than territory itself, can in many cases be 1 For an excellent treatment of a number of these cases, see Gabriella Blum, Islands of Agreement: Managing Enduring Armed Rivalries, Cambridge, MA: Harvard University Press, 2007.

Restitution and restoration in jus post bellum

191

acceptable even given that the land seized is indeed unique. But this solution does not return the parties to the status quo ante. The second issue to consider is the seizure of armaments during war. This is a very common occurrence during war, where the main thing that soldiers are required to give up when captured is their weaponry. Sometimes these weapons are then used by the party now in possession of them, or sometimes they are destroyed, but most frequently it appears that these weapons are simply stockpiled. At the end of war it seems to be a simple matter to demand that these weapons be returned to the party from whom they were seized. This is property, and very valuable property, that surely should fall under any reasonable principle of restitution. Yet there are two problems with this simple analysis. First, consider the circumstances of the seizure of the weapons. Both parties to a war were fighting, and arguably one party may be an unjust aggressor. On the assumption that the unjust aggressor was defeated, why think that that party has any claim as a matter of justice to get its weaponry back? Such weaponry could be regarded as the means by which the unjust war was fought and for that reason contraband. Just as the vehicles used in drug trafficking are impounded, so we might think that weaponry used in unjust wars should not be returned at the end of war. As a matter of justice this argument seems to be highly plausible. Yet, jus post bellum considerations are not simply matters of justice of this sort, but also about what is just given that the ultimate goal is a just and lasting peace. And so returning seized weapons may indeed be the best for both peace and security in the aftermath of war. Second, consider a similar security worry to that expressed about the return of territory. At war’s end, one or both parties may still harbor worries about whether hostilities will resume in the near future. Returning weaponry to a party who might choose to use it to resume hostilities seems not to be an especially good idea. So, perhaps it makes sense to offer monetary compensation rather than return of weaponry. But there are several additional problems here as well. Most importantly, weaponry, unlike land, is fairly easy to replace through purchase and so if the worry is that the vanquished State will be able to rearm, then providing monetary compensation for seized weaponry does not amount to any significant advantage over simply returning the seized weapons. And as was true with the previous argument, there are countervailing considerations concerning the hope that the parties do not do things that so antagonize each other that war will again seem to be made likely to occur.

192

R e s t i t u t ion a n d r e pa r at ion

In post atrocity situations, like post war situations, determining rectificatory justice is not always as easy as it seems. Land or armaments may have been seized and yet there may be reasons not to return them. In addition, property may have been destroyed and yet the party who destroyed the property may have no means to restore it. As we will next see these issues are difficult to resolve and sometimes call for unconventional solutions. 10. 4   w ho i s r e sp ons i bl e ? Restitution normally involves a situation where the one who has done the wrong is the one who must rectify that wrong. But things can be somewhat different based on what the situation is like. There are two aspects of rectification: making sure that victims are compensated; making sure that wrongdoers do not benefit from their wrongdoing. It is normally optimal that these two goals of rectification go together, so that the party who compensates the victim is also the party who is deprived of profit from his or her wrongdoing. But sometimes, for victims to be compensated, a party other than the wrongdoer may have to rectify. First, think of the situation where the wrongdoer is no longer in possession of the seized property. If only the wrongdoer is required to pay, then neither of the two goals of rectification will be served since the victim will not be compensated for loss and the wrongdoer will not be made to suffer by having to give back the wrongfully seized property. In some cases, monetary compensation can be extracted from the wrongdoer even if the wrongdoer can no longer return the object stolen. But there are several factors that complicate restoration after war or mass atrocity. For example, it is sometimes true that the vanquished aggressive party is also economically devastated. Wrongdoers may lack resources to compensate, due to the devastating effects of war on both sides. In addition, in wars of long duration, the people who were originally in charge of a State may be dead, or the leaders may now be different from when the wrongdoing occurred. Compensation in such cases may have to be done by parties different than the wrongdoers. Restitution or reparation can be accomplished, as a descriptive matter, by anyone who has the means to pay compensation. Of course, in the case of land, not everyone is in a position to give the seized land back

Restitution and restoration in jus post bellum

193

to the rightful owner. But if monetary compensation will restore, then many parties other than the wrongdoer may be in a position to provide the compensation. And we may prefer to have the “least cost provider,” namely the person who can pay compensation at least loss to itself, provide the compensation, as a matter of efficiency and even to a certain extent of fairness. But to say that the “least cost provider” is “responsible” for restitution may seem counterintuitive. And it may seem especially counterintuitive to think of the party who is responsible to pay war reparations as the State that is the just victor, especially where reparations will go to the unjust vanquished State. A second consideration, in addition to thinking of cases where the victim will not receive compensation if only the wrongdoer has to pay, is that during war it is not always just the two major antagonists who are responsible for the war. This is especially true if we are talking about a civil war. In a civil war, the internal groups fighting are often influenced by external groups, especially States that have an interest in having one ethnic group, the one to which the majority of its citizens also belong, dominate another ethnic group in the war. In this sense then there may be more than one party responsible for the restitution or reparation at war’s end. And if the external party had involvement in initiating the war, or has greater resources than the vanquished party, it may be that the  external party should pay for restitution as well as for reparations. In the case of an external party with greater resources but much less, if any, guilt in initiating the war, then it may be that the unjust vanquished party is not who should pay for restitution or reparations. A third consideration is to wonder whether or not the victorious party who was not the one to initiate an unjust war, should nonetheless be responsible for restitution or reparations. This may seem to be an unwarranted proposal. If a State, or party to a civil war, is merely defending itself justifiably, why think that that party has a responsibility of restitution or reparation to the unjust party after the war is over? One answer is that war involves such overwhelming destruction that wrongdoers can rarely satisfy the victims. At this point an objection surfaces, namely that I am in effect calling for redistribution of assets from those who have done no wrong, and have indeed been wronged themselves, to those who have done wrong – stretching justice considerations beyond recognition. My response is to point out that loss often occurs to innocent civilians who were not responsible or even liable for the aggressive war even though their government was indeed the aggressor. We need to distinguish between two kinds of victim – the State and the individual. The

194

R e s t i t u t ion a n d r e pa r at ion

State may need to have its bridges repaired, or the individual to have her house rebuilt. Concerning the latter case, reparations paid to individuals are not necessarily going to the party, namely the State, responsible for the aggression; and hence the reparations are not necessarily benefitting the wrongdoers. Also, even aggressor States can suffer damage that is not related to their aggression: think of the firebombing of Tokyo. Such examples make me think that transitional justice must look to a different model of compensation than has been traditionally employed in domestic matters of tort law, in order to achieve the kind of reconciliation needed for a just and lasting peace. Let us take stock of where we are. First, in restitution cases, being a wrongdoer is not restricted to those who caused wrong, because knowingly benefitting from someone else’s wrongdoing creates a duty of restitution. Second, in reparation cases, it may take longer for repair to be accomplished in a society than a single generation can accomplish, making it the case that people may have duties of rectification who were not even born when the wrong was committed. Third, there may be parties external to the conflict who nonetheless played a role, even if not wrongful, in the conflict and hence have a duty to repair the harms. Fourth, in order to effect reconciliation, necessary for a just and lasting peace, it may be important that victims be compensated who were on the unjust side of a war, and yet this may not be possible on the model that the wrongdoer has to pay, because of the extent of the repair needed and the lack of ability to pay on the part of the vanquished. Fifth, those in need of restitution or repair may be individuals who had little to do with the aggression that was mounted by their States, so that compensating them is not necessarily to compensate wrongdoers. In considering practical proposals, let me just say a few words in support of a controversial plan – a worldwide no-fault insurance scheme for paying the restitution and reparation costs to those who are the victims of war and mass atrocity. Here every State of the world would have to pay into a fund that would be used to pay all restitution and reparations at the end of war or mass atrocity. This scheme would disconnect paying these costs from the question of “fault” in that it would not matter whether a State is a victor or vanquished or merely a bystander State – the funds from all States will be used for the victims. In this way, the victims will indeed be compensated more surely than viewing reparations and restitution as solely the responsibility of wrongdoers. One way to justify such a scheme is to think of it as a system of retributive rectification. Joel Feinberg proposed a system of what he called

Restitution and restoration in jus post bellum

195

“retributive torts,” where all parties who drive drunk must pay into a fund that is then used to pay costs incurred by victims of drunk driving accidents.2 States might be thought of like drunk drivers in that they are all facilitating war and mass atrocity by their reckless behavior. Very few States do their utmost to avoid war, and far too many States have a cavalier attitude toward the possibility that war may ensue in the not too distant future. For this reason, it is not far-fetched to say that all States are complicit in war. A related idea, proposed by Jules Coleman, is to think of a system of compensation as just insofar as its goal is to aid victims and there is no less costly way to achieve this normatively desirable objective.3 Here we are thinking of systems or institutions of compensation that do not follow the traditional model where the wrongdoer pays to compensate the victim. Instead, we are focused more on the idea of compensating victims and much less on getting wrongdoers to pay. Indeed, the idea is more like compensating flood victims for acts of God than like traditional forms of compensation in tort law. In Coleman’s view, we look to provide for victims and then we look to make sure that the way victims are compensated is achieved by a system or institution that is the least objectionable normatively. Of course, this still allows for the possibility that compensation systems could be objectionable, just not any more so than any other efficacious system of providing victim compensation. The main disadvantage of holding victors, as well as other States, responsible for restitution and reparations is that it may place an undue burden on the just party and give an advantage to the unjust party. There is thus a sense in which this arrangement may encourage aggressors. Aggressors may think that even if they are unsuccessful in their war efforts, the parties they attack will have to help them rebuild after the destructive effects of the war. And then the rest of their war damages will have to be paid by the general fund that has been established from all other States. It might be thought that this will reduce the disincentives to initiate unjust wars in the first place. I suppose I might agree that if a State is attacked in an utterly unprovoked way it could avoid some or all of its obligations of restitution and reparations. But practically, I am willing to bet that this admission will rarely make much of a difference. It is rare that one State is the clear 2 See Joel Feinberg, “Sua Culpa,” in his book Doing and Deserving, Princeton University Press, 1970. 3 See Jules Coleman, “Tort Liability and the Limits of Corrective Justice,” reprinted in Larry May and Jeff Brown (eds.), Philosophy of Law, NY: Wylie/Blackwell, 2010, pp. 330–37.

196

R e s t i t u t ion a n d r e pa r at ion

aggressor and the other State the clear defender. In most cases, the State that is attacked has done something to provoke the attack, or has made it more likely by acting in some sense unreasonably. This is why the United Nations has virtually outlawed all war.4 While recognizing the unlikelihood of this plan being accepted, I would like to point out the parallels between this plan and the no-fault auto insurance schemes that are now so prevalent in the US but were also once thought to be highly unlikely ever to be adopted. The rationale behind such plans is that the victims of auto accidents as well as wars and mass atrocities have rarely even been contributorily negligent in the cause of their harms; whereas many States could have been involved in the actual war from which compensation is claimed. In war civilian casualties are most often referred to as “collateral damage.” This suggests that the victims have been harmed not due to their own fault. And yet, in the history of modern warfare, increasing numbers of civilians are harmed during war and atrocity. So, establishing a fund that all States pay into and from which compensation can be paid to these victims is an idea that I think has a significant normative rationale behind it even if it is largely impractical at the moment.5 It might be objected at this point that it is unfair to ask victors, to say nothing of all the States in the world, to pay restitution and reparation costs to victims and yet not to ask victims to settle for less than is their due, and not demand full compensation especially from States who took no role in these victims’ harms. In response, I would point out that I have asked victims not to press for trials of State leaders who may have caused their suffering if such prosecutions will have a markedly adverse effect on reconciliation. But having asked victims not to demand all of their due in terms of the transitional justice principle of retribution, I now think that they should at least get compensated for their suffering, especially in cases where such compensation also advances the goal of reconciliation.6 Restitution is primarily about correcting a wrong by returning to the wronged person what that person has lost. But loss can be just as great if it is suffered due to one’s own negligence or due to no one’s fault at all. And loss can even be quite great if one intentionally brings it upon oneself 4 See Preamble and Article 2/4 of the United Nations Charter. 5 But not wholly impractical since in very recent years the ICC has set up a victim compensation fund that uses funds from sources other than the perpetrators. 6 In this chapter I ignore those cases of transition from authoritarian to democratic regimes where many victims may feel that they would rather have retribution than compensation. I have been focusing primarily on inter-State transitional justice.

Restitution and restoration in jus post bellum

197

by one’s wrongful actions. Compensating the loss will thus have similar effects in each of these cases. But restitution is also a subcategory of rectificatory justice and as a matter of justice the circumstances of the loss will matter. The question I have been raising is how much it should matter. Is it also a part of justice to return to another that which one has in one’s possession, even if one was not the person to have taken it? We cannot consider the current holder obliged to return the item, but the victim can make a claim to what is her due nonetheless. In chapter 1, I suggested that the new category of transitional justice fits these cases especially well. And actually, Aristotle discussed something similar 2,500 years ago when he said that “to have too little is to be unjustly treated”7 where normally this is due to someone else having too much, but not always. In light of the discussion of this chapter, especially in this last section, I propose the following normative principle: There is an obligation for those who have suffered losses to receive restitution in all cases where practically feasible, with the only possible exception being the case where the losses are due to the loss sufferer’s wrongdoing.

This normative principle will greatly aid reconciliation, and seems to me not to risk too much in terms of the main tasks of justice. Indeed, I have tried to characterize the aspects of my proposal as consistent with justice. But the type of justice is best understood, as we will again see in the next chapter, as transitional not retributive or distributive justice  – the two forms most often discussed today. 10.5   obj e c t ions In this section I will address several objections to what I have set out above. The first objection is that I have allowed support for jus post bellum goals, such as reconciliation, to distort the justice-based nature of restitution. I am in effect calling for redistribution of assets from those who have done no wrong, and some of whom have indeed been wronged themselves, to those who have done wrong. In the case of the losses suffered by aggressors who lose a war, I have stretched justice considerations to such an extent that they no longer resemble what should be at their core. The final clause of the normative principle of restitution should be eliminated, lest it encourage misperceptions about what justice requires. Aristotle, Nicomachean Ethics, trans. J. A. K. Thompson, London: Penguin Books, 2004, 1134a14, Book 5, ch. 5. 7

198

R e s t i t u t ion a n d r e pa r at ion

My response to this objection is first to note that the core of my normative principle does accord well with traditional views of justice – it is only the last clause that is potentially problematic. And here it is important to note that rectificatory justice is not the same as or even a branch of distributive justice. Rectificatory justice focuses on what has happened in the past, especially looking at past injustices. Distributive justice is from the beginning forward looking, and hence has a different orientation than does rectificatory justice. As I have analyzed rectificatory justice, it is not completely backward looking, yet it remains a view that begins by looking to see what loss or damage has been caused. Then one asks what is due to the loss sufferer, the victim. Meionexia enters in and counsels that some people should accept less than what is strictly their due so that others who are worse off will no longer suffer. The second objection picks up right here and wonders why I think that those who are not wrongdoers would have responsibilities to help those who have suffered losses even though they have been wrongdoers. Surely, while this may be advisable as a matter of public policy in some restricted situations, it is a mistake to call this the workings of justice. Rectificatory justice is a response to wrongdoing. When no injustice has occurred, even though there has been loss or damage, rectificatory justice is not the appropriate venue. And if restitution is ultimately a form of rectificatory justice then it is a mistake to talk of rectification of losses not caused by injustice. My response here is sympathetic – as I mentioned I have mixed feelings about extending the reach of restitution in the way I tentatively propose. In the realm of tort law there has been a long debate about whether justice can require those to pay who have not caused harm. In my view, after war ends, everyone should help to pay the costs of those who have suffered losses. Now obviously, those who actually cause the suffering by their wrongful actions should pay more, but being in a war, and winning, does not relieve one of the duty to help others who are in need, even if these others are on the losing side. Of course, as I said, it is a different matter if the victims have brought about their suffering. A third related objection is that I have not sufficiently given moral weight to the fact that some States have not acted recklessly or even dangerously by going to war. Wars are not started by acts of God but by acts of will, and the States that start wars should have to pay the costs of their actions. States who suffer from the wars they have intentionally and unjustly started should be the only ones who pay for the costs of those wars in restitution and reparations. If people suffer because of the unjust

Restitution and restoration in jus post bellum

199

wars their countries fight, justice does not require others to pay for the costs of restitution for these victims of war and mass atrocity. While in general I support the idea that people should have to pay the costs they incur by their own wrongdoing, I would just note here that the question of responsibility is addressed to the harms to victims who are largely individuals, not States. We should not assume that the wrongs of States should be attributed to the civilians in those States. The civilians who suffer from war and mass atrocity are not the same as their leaders who took them to war or the unjust States that were in the wrong in starting the war. From a human rights perspective we should separate these victims from the injustices of their States, except in those cases where the victims did engage in wrongdoing that then caused their harms. And I am not necessarily endorsing the idea of no-fault restitution funds but only the idea that some of the costs are to be paid from funds supplied by those who are not causally responsible for the harms to the victims. In this chapter, I have sketched a model for understanding both restitution, in particular, and restoration, in general, with specific reference to wartime situations. I have indicated some of the problems that result in the way that restitution is normally interpreted, again with special attention to post war situations. As we will see in the next chapter, there can also be conflicting claims of restitution on the one side and claims of reparation on the other. This issue came to a head in the seventeenth century when Dutch ships seized pirate vessels that had been captured by Spain. Spain claimed restitution, but Grotius argued that the Dutch could claim the booty from these ships as war reparations for satisfying its claims against the Spanish for the costs of war. Along the way we will also consider the legitimacy of punishment as a means of reparations. In general, punishment as a form of reparations has been one of the most contentious of all issues concerning restitution and reparations over the centuries and one that is becoming important again today as well.

ch apter 11

A Grotian account of reparations

Hugo Grotius wrote a treatise on the spoils of war that has been often neglected over the years.1 I will work within the framework of Grotius’s account, at least in the early sections of the chapter, in setting out an account of how to think about reparations at the end of war. In the end I will reject Grotius’s expansive claims about what a party is entitled to after war ends if it has had a just cause to start the war. And I will employ arguments from a Grotian perspective in order to find a more plausible way to limit the claims of reparations after a war ends, even for those States that were forced into a war by States that did not have just cause to initiate it. Along the way I will develop a normative principle to guide us in thinking about the limits of reparations along with a discussion of alternative accounts of what reparation involves. In this chapter I want to examine critically the expansive claims that Grotius makes for how we understand jus post bellum reparations. In particular I am interested in the question of whether and to what extent punishments and other penalties can be assessed against a vanquished State as a matter of reparations. First, I will begin with some general remarks about the nature of reparations and I will discuss the uncontroversial things that are thought to be included in reparations. Second, I then look at special problems of reparations at the end of a war or mass atrocity. Third, I will turn back to Grotius to see what the developed argument for punitive reparations would be. Fourth, I will advance some arguments for thinking that a plausible Grotian position would not be as expansive as that actually defended by Grotius himself. Fifth, I will consider a set of reasons for extending leniency in certain cases where reparations are due. Finally, I will then end by considering several criticisms that could

1 Hugo Grotius, De Jure Praedae (On the Law of Prize and Booty) (1605), trans. Gwladys L. Williams, Oxford: Clarendon Press, 1950.

200

A Grotian account of reparations

201

be mounted against my revised Grotian conception of jus post bellum reparations. 1 1.1  a n ac c ou n t of r e pa r at ions It is normally thought that reparations differ from general compensation in that reparations do, but general compensation does not, require that an injustice has occurred.2 General compensation can be paid because of acts of God such as the floods that afflicted Nashville where my university, Vanderbilt, is located. But the idea of the need for reparation is that one party has wronged another party in terms of a violation of justice. A rupture has opened in a relationship and something is owed to the party wronged in order to show that what happened in the past was indeed wrong and that the party wronged is deserving of repair of its relationship because of the fact that it is the sort of entity that should not have been wronged. Reparations are due when the sort of wrong that has occurred affects the moral respect normally due to a party. Margaret Walker provides a good start at defining reparations that can be the beginning of our own: Reparations are made when those who are responsible for repair of a wrong intentionally give appropriate goods to victims of wrongs in a specific act (or process) that expresses acknowledgement of the wrong, responsibility for the wrong or its repair, and the intent of rendering just treatment to victims in virtue of wrongful treatment.3

The “goods” in question need not be money but can include apologies as well as other gestures such as the construction of memorials. But the important idea is that there must be an expression of acknowledgment and other appropriate feelings that recognize the wrong that was done. Reparation is the restoring to good condition of something that has been damaged. When objects are damaged it is different than when they are lost or taken away. When damage occurs the objects are still in the possession of the original owner. It is simply that these objects have ceased to perform their normal function and are in that sense less valuable than before. Reparation also concerns payments for loss suffered when wrongs are done that undermine livelihood or significant interests. In this sense 2 See Bernard Boxill, “The Morality of Reparations,” Social Theory and Practice, vol. 2, no. 1, Spring 1972, pp. 113–23. 3 Margaret Walker, What is Reparative Justice? Milwaukee, WI: Marquette University Press, 2010, p. 19.

202

R e s t i t u t ion a n d r e pa r at ion

reparation payments are meant to restore the aggrieved party to the position he or she was in before the wrong occurred. One may think of some of these cases as involving damage to earning capacity or the loss of opportunity that would have been beneficial. Reputation is also something that can be damaged and for which reparations can be sought. The root idea behind the various forms of reparations is that payments are due, as a result of damage done, which will restore the aggrieved party to the position he or she was in before the wrong occurred. In the case of war reparations the idea is that one party owes reparation to the other party for the ravages of war or for the costs incurred to fight the war. In the case of ethnic group reparations, it is similarly the case that what is called for is payment for wrongs such as slavery or genocide that have diminished the group in question and made it suffer losses that need now to be compensated. Often, in both war and mass atrocity cases, it is highly controversial what it will take to restore things so that the damage of historical injustice or the perpetration of unjust war is in fact repaired. One way to think of these cases is in terms of the reputation of the group, although such an analysis often fails to capture the severity of the wrongs, especially in terms of such hard-to-quantify factors as harmed relationships and emotional well-being. The damage that is the focus of reparations is a wrong to the party in question not because of some loss of a physical thing, as in restitutions, but normally because of a loss of opportunity. In this sense, the loss is much more difficult to calculate in the case of reparations than in the case of restitutions. And similarly it is harder to calculate what will make amends for the loss in many cases where reparation as opposed to restitution is called for. In part this is because normally returning the object lost is sufficient for restitution, whereas it is often difficult to determine how or even whether something damaged can be returned to its former value. One of the issues that distinguishes restitution from reparation is that in restitution it is normally possible to return things to the status quo ante whereas in reparations this is normally much more difficult to achieve. Indeed, the legal literature has focused on the concept of satisfaction to mark the difference between return to the exact status quo ante and the approximate form of compensation that is called for in reparations, especially when the damage done is at least partially psychological.4 4 See Pablo de Greiff, “Justice and Reparations,” in Pablo de Greiff (ed.), The Handbook of Reparations, Oxford University Press, 2006, pp. 451–77. Also see Richard Falk, “Reparations, International Law, and Global Justice: A New Frontier,” in Greiff (ed.), The Handbook of Reparations, 2006, pp. 478–503.

A Grotian account of reparations

203

Psychological damage is hard to rectify, as courts have found, because of vast differences in how people react to damage or wrong both in terms of how much they suffer at the time of the damage and in terms of what it would take to make amends. Apologies suffice for some, but others may require huge expenditures of resources. In post war situations, or in transitions from mass atrocity, the damage done to a society is normally extensive. There are important political questions about whether all or even any reparations should be paid given that such payments are likely to make reconciliation very difficult and even possibly to stymie long-term peacemaking goals such as returning to a position of economic self-sufficiency. On the other side of the coin, the failure to make reparations will leave the society that has suffered damage with an unresolved grievance that can fester and grow over time to such an extent that it also jeopardizes long-term peace in the region. The idea of satisfaction then is a very difficult one in these post war situations of reparations. In the terms of jus post bellum satisfaction, the International Law Commission’s Articles on State Responsibility speak of: “reparation in particular for moral damage such as an emotional injury, mental suffering, injury to reputation and similar damage suffered by nationals of the injured State.”5 Failing to take this form of damage into account has serious risks that the reparations will not set the stage for reconciliation. In addition, the idea of repairing a relationship helps explain the close connection between reparation and reconciliation. Repairing a damaged relationship is one of the central ideas in reconciliation in its many forms. Ruti Teitel claims that: The vocabulary of “reparatory justice” [is] laying a basis for redistributive policies associated with radical upheaval … Because of their versatility, reparatory practices have become the leading response in the contemporary wave of political transformation.6

Satisfaction can take on this radical cast when redistribution of goods is called for. Reparation shares with restitution the problem of determining how long the claims will be kept fresh over time. If there are no post war complaints of damage and hence for payments to offset the damage, will there be a kind of statute of limitations on whether those complaints can be resurrected at a much later time? Reparations are thought not to toll after a lengthy time has gone by, since it is not the original wrongdoer who is 5 Quoted in Falk, “Reparations, International Law, and Global Justice: A New Frontier,” p. 483. 6 Ruti Teitel, Transitional Justice, Oxford University Press, 2000, pp. 119–20 and 127.

204

R e s t i t u t ion a n d r e pa r at ion

the only one obligated to repair the damage – repair turns on ability to repair as much as it does on causal history of the damage. But there are still good questions of whether or not the passing of several generations does not toll reparations. One of the reasons to think reparations do toll, at least as a practical matter, is that it is very hard to figure out what would return us to the status quo ante after a considerable period of time. And it is normally impossible effectively to repair emotional damage after long periods of time have gone by, in any event. 1 1.2  r e pa r at ions at t h e e n d of wa r Again it is normally thought that it is States primarily that participate in war, and it is wrongs done by States that are the main focus of jus post bellum reparations. But, individual human persons can have claims that are pressed by States either in behalf of themselves or in behalf of individuals who are their citizens or subjects. Concepts like acknowledgment and recognition, as well as the grounding concept of dignity at the center of the idea of being wronged, are not as easily applicable to the relations of States as they are to the relations of individuals. Indeed, there is a good question of whether reparations can be due to groups or institutions as well as individual human persons. In one sense this is an easy question since certain groups and institutions are generally deserving of respect, such as many racial groups and religious institutions. In part, this is because the group or institution has been the subject of historical discrimination, where its members, as members, have been mistreated. Or a group’s dignity might be wronged because the institution or group’s reputation has been adversely affected in a way that is clearly arbitrary or capricious. But some kinds of groups and institutions may be wronged without being owed reparation due to the nature of the wrong. And many wrongs done to individuals may not be attributable to States and other collectivities. In the context of war, reparations seem only to arise normatively when a war has ended in which one side was clearly in the wrong, and practically only when that State is also the State that lost the war. In war, reparations typically concern States, and yet it is not completely clear that States are the kind of institution that can make out a claim to have been wronged in such a way that the wronging State can be required to pay reparations to the wronged State. Even if a State is dragged into war where it is clearly defending itself, and hence has a just cause to engage in war, it is not crystal clear why that State is owed reparations, especially of

A Grotian account of reparations

205

the punitive sort that Grotius discusses. Individuals who have had things damaged are owed reparations, but it is much harder to say what is owed to States that were forced to defend themselves, since damage to States is hard to see and to calculate. In this context, initially consider reparations or restitution for cultural artifacts seized during war. On its face this looks like a subject that would be easy for a theory of restitution after war. It is notorious that when wars are fought, soldiers have been allowed to loot and plunder the vanquished lands, carrying off artifacts of all sorts. On first sight, it makes perfectly good sense to say that a theory of restitution would demand that all articles plundered should be returned after the end of hostilities. Just as there is now a complete ban on rape during war, so there should be a complete ban on the seizing of cultural and other artifacts during war. And when the latter proviso is violated, the restitution principle should demand that these items be returned. Yet, one question to ask is to whom these items should be returned. In the next section we will examine a very difficult case in this context addressed by Grotius in the early part of the seventeenth century. At the moment let us focus on cases like that of the artifacts taken from Nazi Germany that had themselves been taken from Jews during the Holocaust. Does it make sense to return these artifacts to the party they were seized from when it is also true that that party is not the lawful owner? This is a very controversial aspect of our topic and one that should make us pause in thinking that there are easy answers to the central questions that arise when we are discussing reparations or restitution at war’s end. But as we next see, I think that some preliminary normative conclusions can be drawn from what I have explored so far. Unlike restitution, reparations can be demanded for emotional and other non-tangible damage. Indeed, I would propose the following preliminary normative principle of reparations (modeled on the restitution principle): There is an obligation for those who have suffered damages to receive reparation in all cases where practically feasible, with the only possible exception being damage that is due to the sufferer’s own wrongdoing.

Emotional or other non-tangible damage should be treated the same as tangible damage, except that it should only be considered repairable if it is accompanied by tangible damage to the same person or persons, due to the difficulty of ferreting out fraudulent claims of emotional damage. As this chapter proceeds, I will make various additional proposals about how

206

R e s t i t u t ion a n d r e pa r at ion

to refine the normative principle of reparations in line with the conclusions of the previous chapter about restitution What is especially controversial is whether or not a State can act to deter or demand punitive damages after it has thwarted an unjust aggressive war. In the case of deterrence, the question is whether or not a State can destroy military infrastructure of the vanquished State, perhaps including the dualuse infrastructure capacities of metal production or nuclear energy production. In the case of retribution, the question is whether or not a State can demand more than reasonable compensation for losses so as to express the full extent of the wrongfulness of what the vanquished State is responsible for. In both of these cases, it has remained highly controversial whether or not a victorious State is entitled as a matter of reparative justice to these spoils of war. Grotius, the first of the international legal theorists, argued that both of these forms of controversial reparations could be justified. I next take up some of Grotius’s arguments since they are some of the most interesting that we have in the history of the Just War tradition. 1 1.3  g ro t i us’s a rgu m e n t Grotius argues that war should only be undertaken for rights enforcement when there has been “injury received.”7 He then gives a wide interpretation of what can rightly be taken as the spoils of war if the war has indeed been fought for a just cause. At the beginning of his argument Grotius sets the stage by claiming that: Justice consists in taking a middle course. It is wrong to inflict injury, but it is also wrong to endure injury … the truly good man will be free from meionexia, that is to say, from the disposition to accord himself less than his due.8

Meionexia is an underexplored vice, but Grotius argues that it is one of the main vices to have caused serious difficulties after a war has come to an end Grotius believes that according oneself less than one is due can seemingly affect only oneself and is merely a source of ridicule. But, argues Grotius: if at any time private loss brings common peril in its train, then indeed, we must combat it with all of our force, lest the public welfare be harmfully affected by the mistaken convictions of individual citizens.9 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625) translated by Frances W. Kelsey, Oxford: Clarendon Press, 1925, p. 170. 8 Grotius, De Jure Praedae, p. 3. 9 Ibid. 7

A Grotian account of reparations

207

Meionexia can harm the society or State when overly scrupulous people do not take what is theirs by right thereby depriving their fellow citizens of these benefits and what they can be used to produce. Accordingly, Grotius, like Aristotle, argued that taking less than one is due should, in some cases, be strongly condemned. In these cases, it is not merely an error in judgment but a colossal failure to support the common welfare of a society or State. Restraint in demanding or taking what is one’s due can, especially in situations of war and its aftermath, be harmful to the State and its population. As I pointed out in chapter 1, Grotius gives the common-sense principle: “Repay what you owe” which he says “is just in the highest degree.” This is a “natural obligation” as well as something affirmed by “the law of nations.”10 Grotius claims that part of reparations also involves the idea that one should engage in “repayment for good deeds.”11 And winning a just war is one of the supremely good deeds. So, what does a vanquished State owe to a victorious State for having received the supremely good deed of being vanquished for its having engaged in aggressive war? Grotius carefully distinguishes cases of winning a just war from cases of winning an unjust war – only the former is a good that should be repaid. In many ways it would seem to be hard to calculate what the value is of such a good especially in light of the fact that the vanquished may not prefer to receive such a “good.” Indeed, the most uncontroversial “repayment” may be that the vanquished owes a debt of gratitude that can be satisfied by some sort of public display, such as a public thanking. At this point, somewhat following Grotius, I would propose an amendment to the normative principle of reparations that would allow for some non-tangible damages to be rectified with such remedies as public apologies and other forms of public declarations aimed at acknowledging regret for damage done. This proposal would go hand in hand with what the vanquished owes for good deeds done for it at the end of a war. In both cases, apologies or thanks, rather than monetary compensation, may be the best that can be hoped for if there is to be any chance of sustaining the goodwill needed for reconciliation of the parties. What is left unclear is whether non-monetary compensation should also be paid when monetary compensation does not seem to do justice to the damages that were intentionally inflicted. Grotius was famous, or infamous, in his time for arguing that the spoils of war could include punitive damage assessments. 10 Ibid., p. 18. 

  Ibid., pp. 17–18.

11

208

R e s t i t u t ion a n d r e pa r at ion

Controversially, Grotius ultimately argues for the proposition that “all seizures of prize or booty are just which result from a just war.”12 One can extract from Grotius’s text several arguments in support of this proposition. First, toward the beginning of his text he says: the conquering power should not leave “in the enemy’s possession resources which may be used to destroy the innocent.”13 And later he says: “it is quite evident that even the peace of the state and the authority of magistrates cannot always be preserved without the seizure of enemy spoils.”14 Here, Grotius makes the plausible point that reparations should include giving up the means of future harm – including armaments if the victorious party demands it, as the Allies demanded of Nazi Germany and Imperial Japan at the end of the Second World War. Second, Grotius believes that if “at the beginning of a war, the enemy offers full reparation, not only for the injury done and the damage to property, but also for losses and expenses, he should be given a hearing,” which seems to imply that this reparation should be prima facie sufficient. But Grotius gives a different analysis of reparations “if the war is already raging, for the culpable belligerent will no longer be in a position to make amends.” And “it will be entirely just for him to suffer penalties graver than the original injuries,” for then the victorious side “can impose such penalties according to its own decision.”15 Here Grotius makes the much less plausible point that, merely by being forced to go to war, the  victorious and just party to a war can impose further penalties on the vanquished party that go beyond mere compensatory repayment and that move into the realm of the punitive. Grotius generally believes that punishment is due in response to wrongdoing and he extends this idea into the considerations of reparations in the aftermath of war. If a State has been subjected to aggression, what is owed to that State is no longer something that the offending State has control over. The aggressing State loses any claim to decide the appropriate form of its penalty or punishment when a State wages aggressive war. It is as if the aggressing State has voluntarily waived its right to decide its own fate when it starts down the path of aggression. This is not quite right since Grotius holds that in the beginning of an aggressive war, the State in question will still have other options. It is only after the war has gone on for a while and the defending State is forced to mount a significant war effort in response that the aggressive State loses the right to decide for itself. 12 Ibid., p. 58. 

  Ibid., p. 4.  

13

14

  Ibid., p. 49. 

  Ibid., pp. 48–49.

15

A Grotian account of reparations

209

This Grotian position parallels one that is currently espoused by a number of prominent philosophers, namely that those who fight wars of aggression should be treated differently, and more severely, than those who fight with just cause. Indeed, some have argued that the lives of soldiers who fight in an aggressive war should be significantly discounted in proportionality assessments, both jus ad bellum and jus in bello.16 The position of Grotius that I have been explicating concerns jus post bellum, a topic that is not much written about among Just War theorists. But what Grotius says could easily fit with the writings of contemporary philosophers who also urge that by engaging in aggression the moral responsibilities are different than they are for those who fight wars that have just cause. Punitive damage assessments are, in Grotius’s view, appropriate for States that initiate aggressive war. 1 1. 4   a g ro t i a n r e sp ons e t o g ro t i us’s e x pa ns i v e r e pa r at ions d o c t r i n e In this section I will mount a response to Grotius’s expansive reparations doctrine from a consideration of some of Grotius’s other ideas – creating a Grotian response to Grotius. My intent is to provide a more plausible view of the limits of reparation in the aftermath of war that would be serviceable today. Even if Grotius is right that the limits of reparation are not grounded in distributive or retributive justice, it may nonetheless be true that Grotian limits exist in jus post bellum cases, primarily grounded in considerations of honor or humanitarianism. These latter categories are of supreme importance for understanding the rules of war generally and have even more purchase in jus post bellum than in other parts of the Just War doctrine, or so I will try to show from a Grotian standpoint. Despite what Grotius actually argued, Holland was not entitled to keep booty seized from Spanish ships that were purportedly fighting an unjust war. One place to start is that while Grotius initially provides expansive treatments of many other issues, he later defends restraints based on honor or humanitarian concerns. Grotius does not avail himself of these categories in De Jure Praedae. Indeed, he denies that honor stands against the seizure of prizes from those on the unjust side of war in the aftermath of war.17 In De Jure Praedae, Grotius argues that justice and honor cannot be understood to be separate from one another when we are speaking of

  See Jeff McMahan, Killing in War, Oxford University Press, 2009.   Grotius, De Jure Praedae, p. 318.

16 17

210

R e s t i t u t ion a n d r e pa r at ion

natural justice or the laws of nature. Natural justice governs all aspects of war, on this early Grotian account, and as a result he is able to argue that the aggression on a State’s part, constituting a wrongful act, warrants that even punitive damages can be assessed. But in De Jure Belli ac Pacis, Grotius argued that honor and humanitarian concerns in the laws of war had a different compass than did the principles of natural justice. In particular he argued that “it is an obligation of humaneness not to make the fullest use of one’s right.”18 While it was just to kill soldiers, even when captured, who fought on an unjust side of a war, mercy and honor dictated that such soldiers and prisoners be spared unless very great harm would occur to the side fighting with a just cause.19 In general, in De Jure Belli ac Pacis, Grotius maintains that many things that are otherwise just are nonetheless forbidden by a sense of honor as well as the duty of humaneness and mercy.20 Another place to look in Grotius’s own writings to support restraint concerning the spoils of war comes from De Jure Praedae itself, where Grotius says that “leniency is appropriate either at the outset of a war or at the conclusion of wars …”21 Considerations of the spoils of war sometimes concern ongoing conflict, but even in such a situation the major question is whether a State can keep these spoils at the end of a war. And now we are in the domain of leniency that is grounded in mercy and honor, categories that Grotius famously applied to the laws of war in general and, from this quotation, it seems that they should apply to the situation of how to regard the spoils of war in the aftermath of war. Exercising maximal discretion in extracting the spoils of war from the vanquished does not seem to fit with this discussion of leniency and honor, setting up my Grotian response to Grotius’s expansive reparations doctrine. My Grotian position on the spoils of war and reparations is this: the principle of leniency should guide all determinations of the punitive side of reparations. In practice, what this amounts to is that those who have suffered injury should be compensated, and that includes opportunity costs for what the time and resources expended to defend against aggression would have benefited the just party. But the punitive side of reparations should be restricted to destruction of armaments and singleuse military infrastructure only. Most of this “punishment” is mainly aimed at deterrence. True retributive punishment aimed at a State, as   Grotius, De Jure Belli ac Pacis, p. 759.   19  See ibid., p. 761. See ibid., Book iii, ch. 10.   21  Grotius, De Jure Praedae, p. 325.

18

20

A Grotian account of reparations

211

opposed to its leaders, at the end of a war should be disallowed in all but the most extreme cases, such as when a State repeatedly engages in aggressive war, or when the aggression’s effects on human rights are great. And even in this extreme case, leniency should require that the general population be made to suffer as little as possible. The leaders that drove a State into multiple or egregious aggressive wars should bear the brunt of the punitive sanctions, and this is normally best accomplished through criminal trials at war’s end, not through seizure of property or so-called booty.22 Once again, one can find support for this idea in De Jure Belli ac Pacis. There Grotius says: Least of all should that be admitted which some people imagine, that in war all laws are in abeyance. On the contrary war ought not to be undertaken except for the enforcement of rights; when once undertaken it should be carried on only within the bounds of law and good faith … But in order that wars may be justified, they must be carried on with not less scrupulousness than judicial processes are wont to be.23

At another point, Grotius says: “War has its laws no less than peace.”24 Grotius favors judicial supervision, even of war. And when that is not possible, he favors employing the principles of law, with the principle of leniency as one of law’s prime directives, in judging how to respond to those who may have violated the rules of war. All of this tells against letting the victorious State decide what is the proper limit, if any, to the spoils of war. Indeed, such a doctrine from De Jure Praedae seems entirely inconsistent with the central humanitarian doctrine of De Jure Belli ac Pacis. So, we can see that Grotius himself offers a later, and arguably more mature, response to his early defense of the spoils of war as a matter of punitive or retributive justice. Insofar as retribution is, along with reparations, an important part of the jus post bellum, it is important to get the relationship between these principles settled. 1 1.5  l e n i e nc y i n r e pa r at ions The Grotian account of reparations sketched in the previous two sections calls for leniency in how we deal with the perpetrators of violence in war and mass atrocity. There is an obvious pragmatic appeal of this call for 22 See Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008, chs. 8 and 9. 23 Grotius, De Jure Belli ac Pacis, p. 18.   24  Ibid., p. 19.

212

R e s t i t u t ion a n d r e pa r at ion

leniency, namely that the parties who must make reparations are not so enraged by the demand for reparations that they are never reconciled to the party to whom reparations must be made. This was true of Germany in the settlement after the First World War. And in recent atrocities, it has often also been seen as important that reparations not make reconciliation hard or impossible to achieve. In this section I will address this issue against the backdrop of the discussion in the previous chapter of who should pay for rectification. On a Grotian account of reparation, leniency should be displayed by the victor toward the vanquished. The position opposed to the Grotian account, sometimes drawn in the terms that Grotius himself used early in his career, concerns the need for victims of violence to be compensated. In the previous chapter I argued that victims should be compensated but that the source of the payments should not be restricted to those who were the perpetrators of the violence. Indeed, there are two principles here that sit in uneasy tension: the principle that no one should be able to benefit from his or her wrongdoing, and the principle that victims should be compensated for their losses. The normal way of meeting both – having the wrongdoer compensate the victim – is often the best strategy but not always. In some cases, the wrongdoer can be made to suffer and the victim compensated without linking these strategies to each other but instead satisfying each principle separately. Displaying leniency does not translate necessarily, or even optimally, into granting amnesty to wrongdoers. Reparations programs are affected by amnesties achieved through legislative or executive order in many recent cases of transition from a state of violence to a state of peace. Indeed, in some cases such as that of Brazil, a reparations process began once criminal punishments had been eliminated due to a grant of amnesty.25 In my view, the perpetrators of violence should have to pay in some sense for what they did so that they do not actually, or apparently, benefit from their wrongdoing. What I have maintained throughout the book, though, is that perpetrators need not necessarily suffer strict penal sanction or be forced to pay all of the direct costs of the effects of their wrongdoing. Nonetheless, optimally they should suffer something for what they have done. Leniency is not an all-or-nothing matter. Rather, as the term suggests, it involves only the lessening of punishment or penalty as a matter of 25 See Ignacio Cano and Patricia Salvao Ferreira, “The Reparations Program in Brazil,” in Pablo de Greiff (ed.), The Handbook of Reparations, Oxford University Press, 2006, pp. 102–53.

A Grotian account of reparations

213

mercy or justice. Lessening of punishment or penalty (including compensation) is to be done in order to satisfy normative principles of jus post bellum such as reconciliation or rebuilding (of the rule of law). And these other principles are themselves grounded in considerations of justice, albeit normally of transitional justice. There is sometimes a connection between justice and mercy, or it happens that they both support the same conclusion. Mercy relates to the character of the agent whereas justice is based on the nature of the act, at least normally. Yet, it can be desirable to extend leniency both to display the character of the party who does so and also to acknowledge aspects of the act under consideration, such as that the act was committed under duress or with the intention of producing overall good results. Leniency provides one strong reason for thinking that parties other than the perpetrator should have to help compensate victims of violence in war or mass atrocity. Leniency is a virtue in that it stands for the proposition that severity of punishment or penalty is sometimes not appropriate even when it may be due. Here we can again return to the idea of meionexia – where it is sometimes right not to demand what is one’s due. In cases of reparations, especially if there has been a substantial period of time that has elapsed since the wrongdoing occurred, leniency also makes sense as a way to dampen the hard feelings that result when expectations are upset. Of course, not all expectations deserve to be met. But in some cases, especially in order to achieve a lasting peace, leniency can be highly desirable. The crucial question is whether the peace that results from leniency (leaving aside blanket amnesty) can be part of a “just” peace. I have argued that transitional justice may require that retribution be diminished or eliminated, and I would make the same arguments in respect to reparations. If we think of justice as generally giving to each his or her due, then it appears that problems arise. Acting leniently seems to let the wrongdoer off with less than he or she deserves. But what is deserved is not a fixed commodity – it can be influenced by many factors about the persons and circumstances. And these circumstances can concern the wider effects that can result from severe reparations programs that bankrupt the perpetrators or in some other way are regarded as not being fair. If we add that in most cases we are dealing with organized State action, and where the members of the State did very different things, or perhaps nothing at all, to bring about the suffering of the victim, we can see why leniency is both a practical and also often a moral way to respond to some cases where reparations are due.

214

R e s t i t u t ion a n d r e pa r at ion 1 1.6   obj e c t ions

One of the most significant objections to the Grotian model I have set out is that it fails to treat the vanquished side as a responsible party that must be made to pay fully for its wrongdoing. As Grotius said: “we will be considered merciful” if we “adopt the sternest possible attitude to those men who have attempted to destroy the homes of each and every one of us together with our common home.”26 Those who participate in an aggressive war must suffer evil because of the evil that they have “inflicted.”27 And Grotius goes on to say that it is so important that a wrongdoer suffer for the suffering he or she has inflicted that each person may be so punished “by anyone at all.”28 Denying the victorious State the right to punish the vanquished State is to fail to recognize that those who cause suffering must be made to suffer themselves so that justice can be done and so that the agency and responsibility of the offending State is affirmed. My response is to acknowledge the force of this objection, and to admit that in most situations such retributive considerations should hold sway. But when we are discussing reparations more is at stake than retributive justice. For one of the root ideas behind reparations is that a rupture in relationship needs to be mended. Severe treatment of the party that caused the rupture may be consistent with, even demanded by, retributive justice. But repairing the rupture may not be consistent with severe treatment, for a severe response may make repair or reconciliation much harder than would a lenient response. To be sure, reconciliation is different than reparation, but the two are part of the same jus post bellum set of normative principles that aim at the restoration of peace, a just peace to be sure but a peace nonetheless. Here the key is, as Margaret Walker has indicated in the subtitle to her recent book, “reconstructing moral relations after wrongdoing.”29 Punishing severely or seizing the maximum spoils of war surely does not advance this goal. A second objection is that it is important to put those who contemplate aggressive war on notice that they could find themselves punished quite severely in the aftermath of war, losing much more than the losses they inflicted on those who ultimately prevail in such wars. Such notice 26 Grotius, De Jure Praedae, p. 323. 27   Grotius, De Jure Belli ac Pacis, p. 462.   28  Ibid., p. 470. 29 Margaret Walker, Moral Repair: Reconstructing Moral Relations after Wrongdoing, NY: Cambridge University Press, 2006.

A Grotian account of reparations

215

is important to counteract the tendency of States to drag their populace, as well as other States, into wars that lack moral justification. If we are to take seriously the underlying commitment of the United Nations and many other international organizations to diminish war and armed conflict throughout the world, then those who contemplate aggression need a clear sign of what reaction they can expect from the international community. And the clearest sign that wrongdoing is not acceptable is that penal sanctions will be applied, both to the State and also to its leaders who drag the populace into unjust war. This second objection raises an especially important point in light of my response to the first objection. Securing peace does not just require the willingness of the parties to get along; it often also requires that some especially recalcitrant parties are deterred from acting in what they perceive is their interest and in a way that wrongs or is likely to wrong other parties. Here it is true that deterrence of aggression is very important, and that sometimes anticipation of severe treatment is an effective deterrent. But again I would insist that deterrence can occur by other means than severity of punishment directed at States and in any event securing peace can sometimes require a delicate balancing of factors, rather than a simple draconian threat. It is for reasons such as these that Grotius ends De Jure Belli ac Pacis with a plea for moderation concerning the spoils of war.30 Trust is needed for both reparation and reconciliation. And how one treats the spoils of war is a good place to begin to build trust by unilateral actions aimed at inspiring peaceful rather than aggressive means of resolving disputes. Indeed, threats and actual visiting of severe punishment undermine the basis for trust. And yet trust is what ultimately moral repair is based in since it is normally distrust that has caused the rupture in relationships to begin with. A plausible Grotian account of reparations, contrary to what Grotius says in his early work, De Jure Praedae, places restrictions on how the spoils of war will be meted out even as a matter of justified punishment. A third objection is that Grotius is simply wrong to think that meionexia is the right category of justice for transitional contexts. The objection is that my view seems to rely too much on this odd account of meionexia that Grotius is committed to. Indeed, it seems that I have bent over backward to try to accommodate doctrines in the Grotian tradition that are not worth preserving and certainly not doctrines that

  Grotius, De Jure Belli ac Pacis, Book iii, ch. 6.

30

216

R e s t i t u t ion a n d r e pa r at ion

should be accommodated. There is a good reason why other philosophers did not follow Grotius in raising the profile of such an odd trait as meionexia. I regard this point as a serious objection to the Grotian framework I have adopted. Let me begin by saying that Grotius is only suspicious of meionexia in his early writings. In his more mature writings, the general idea of taking less than one deserves is part of a general strategy that Grotius offers so that morally valuable peace might more easily be achieved. Reconciliation sometimes requires, and often counsels, that one should moderate one’s demands, even if these are justified demands, so as to attain other more important moral goals. By the end of his monumental later treatise Grotius pulls back from the strong claims concerning what the laws of nature or even the laws of nations can justify; and he counsels that one should act in the spirit of mercy and humanitarianism. Mercy is a virtue that also involves not pressing for what one has a right to demand. Moderating one’s demands, even justifiable demands, is to give a sign to others that one is trustworthy and ready to compromise so as to achieve a moral good. In the case at issue, it is just peace that one hopes for and Grotius rightly counsels that one way to attain peace is by such acts of moderation. Focusing on meionexia is not as odd as it initially seems, especially if leniency is already recognized as a virtue. In this chapter I have explored both conceptual problems in how best to understand reparations in the aftermath of war and also one very difficult case of possible reparations. That case, whether punitive reparations should be awarded to a party who has had to fend off an unjust aggressor, was pursued by reference to Grotius’s important work on these topics in jus post bellum. It is perhaps unfortunate that the founder of international legal theory did not provide a more nuanced understanding of this complex problem, especially in relationship to the question of whether seized booty during war should be returned as a matter of reparations. I have tried somewhat to correct the record by showing that Grotius actually has good reasons to reject his early controversial position on punitive reparations. And in so doing I have tried to supply the nuances to this difficult issue that a proper Grotian account of reparations would warrant.

pa r t V

Proportionality and the end of war

ch apter 12

Proportionality and the fog of war

In this chapter I will reflect on the role that the jus post bellum principles play in the Just War tradition in general, paying special attention to the principle of proportionality. And I will also consider how we should think about the concept of war in general after our jus post bellum reflections. I shall consider the end of war, now understood as the end to all war, not merely the end to a particular war, as the United Nations Charter seemingly promised, when it was announced in the Preamble that the People of the United Nations were “determined to save succeeding generations from the scourge of war.” If people who were contemplating going to war had to think seriously about post war issues, would they be less likely to initiate war in the first place? And how should we view the so-called “fog of war?” The chapter will proceed as follows. In the first section I will set out the problem of indeterminacy in proportionality assessments. In the second section I examine some of Michael Walzer’s views about retribution and reconciliation. In the third section I will try to formulate and defend a post war principle of proportionality, discussing how it relates to other proportionality principles, as well as to other jus post bellum principles. In the fourth section I examine the fog of war, especially concerning Robert McNamara’s calculations about the application of the principle of proportionality to the firebombing of Tokyo. In the fifth section I outline a general account of contingent pacifism that seems to me to follow from careful consideration of the jus post bellum principle of proportionality. In the sixth section I begin a discussion about the prospects for the end of war in light of considerations about the justice of how particular wars should end. And in the final section I provide a summary of some of the main conclusions I have reached throughout the book. 1 2 .1   t h e probl e m of i n de t e r m i n ac y In Michael Walzer’s otherwise comprehensive book, Just and Unjust Wars, he specifically deals with the jus post bellum in the chapter, “War’s 219

220

Prop or t ion a l i t y a n d t h e e n d of wa r

Ends and the Importance of Winning,” of Section II on the “Theory of Aggression.” Thus, Walzer seems to subsume jus post bellum considerations under jus ad bellum ones. And even at that, he focuses his attention during these sixteen pages only on what David Rodin has called, “ jus ad terminationem belli.”1 Even in his later collection of essays, Arguing about War,2 Walzer only devotes scattered references to the jus post bellum proper. Walzer recognizes that the end, or point, of a just war is to achieve a “better state of peace,”3 which is a crucial point for jus post bellum. But soon thereafter he spells out the ends of war in terms of the “rights of nations, even of enemy nations, to continued national existence.”4 Yet, it is unclear how the continued existence of nations advances the end of peace, especially a just peace. And his only discussion of jus post bellum proportionality comes from the need “to balance the costs of continued fighting against the value of punishing the aggressors.”5 There is very little discussion of reparations,6 and reconciliation. Despite these problems, let us look at Walzer’s often telling comments about proportionality. In Walzer’s short chapter on “War’s Ends” there is a wonderful comment on the principle of proportionality: The argument at this point might be put in terms of proportionality, a doctrine often said to fix firm limits to the length of wars and the shape of settlements. In this instance, we would have to balance the costs of continuing to fight against the value of punishing the aggressors … it is characteristic of arguments of this sort that an equally strong case could have been made on the other side, simply by enlarging our conception of the purposes of the war. Proportionality is a matter of adjusting means to ends, but as the Israeli philosopher Yehuda Melzer has pointed out, there is an overwhelming tendency in wartime to adjust ends to means instead, that is to redefine initially narrow goals in order to fit the available military forces and technologies … It is necessary in such arguments to hold ends constant, but how does one do that? In practice, the inflation of ends is probably inevitable unless it is barred by considerations of justice itself.7

Here we have quite a lot of good material in this passage for understanding proportionality generally and also for proportionality in its three specific 1 David Rodin, “Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression,” in Carsten Stahn and Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, The Hague: TMC Asser Press, 2008, p. 54. 2 Michael Walzer, Arguing about War, New Haven: Yale University Press, 2004. 3 Walzer, Just and Unjust Wars, NY: Basic Books, 1977, p. 121. 4 Ibid., p. 123.  5  Ibid., p. 119. 6 p. 297, ibid., is an exception. 7 Ibid., pp. 119–20.

Proportionality and the fog of war

221

Just War forms: ad bellum, in bello, and post bellum. I will focus on each of these but most especially its relevance for jus post bellum proportionality. Walzer is surely right that in calculating whether or not a given response is proportionate we have to ascertain what the ends are and put a value on the various things that result from pursuing these ends. Ends are not pre-given, they are recognized from among a proliferation of possibilities. This is indeed a serious difficulty in proportionality assessments. And in my view, it is because proportionality calculations are so hard that we should be very cautious about endorsing any particular war or tactic. Indeed, caution of this sort opens the door for serious reflection on pacifism as an alternative to Just War. In the case of jus post bellum proportionality, there is an important pregiven end, namely, a just and lasting peace. It is true that there are various means to this end, but jus post bellum considerations do not have to contend with a proliferation of possible ends  – only one is relevant. Of course, this does not mean that the value of this end is pre-given. And we still have the problem of how to value the consequences of using various means to pursue this end. But perhaps things are not as relativistic in jus post bellum proportionality as Walzer suggests to be true of jus ad bellum proportionality. War may achieve many ends, but if peace is the central end of war, then one wonders why Just War theorists have been so dismissive of pacifism over the centuries. Despite agreement about the end of jus post bellum reflections, there is a problem in jus post bellum proportionality calculations. The problem is that the end of a just and lasting peace is not of infinite value, and so we will need to know how valuable it is if we are to weigh its value against the disvalue to be produced by the particular means being proposed to accomplish this end. If the end is of infinite value, then any means could be justified that lead to that end, even killing very many people. But that seems counterintuitive. Surely, killing most of a population so that a small remnant can live in a just peace cannot be countenanced. And if predictions are very difficult, one might well wonder why initiating war to achieve a better peace, when peace is already at hand, is not much more controversial than it is normally understood to be. 1 2 .2   r e t r i bu t ion a n d r e c onc i l i at ion This problem of indeterminacy is especially difficult when considering the jus post bellum principle of retribution. Prosecuting a State’s leaders for aggression or war crimes is of major importance, but it can

222

Prop or t ion a l i t y a n d t h e e n d of wa r

sometimes make the achievement of a just and lasting peace much harder than before. So, there must be some way to assess the value of holding people accountable against the value of achieving a just and lasting peace. Proportionality seems to feature prominently as we attempt to make such an assessment, but we will need to ascertain the relevant values, and what are the limits of the values.8 We can perhaps make some progress on the problem sketched so far by considering another passage by Walzer on proportionality: What is being prohibited here [by Sidgwick] is excessive harm. Two criteria are proposed for the determination of excess. The first is that of victory itself, or what is usually called military necessity. The second depends upon some notion of proportionality: we are to weigh “the mischief done,” which presumably means not only the immediate harm to individuals but also any injury to the permanent interests of mankind, against the contribution that mischief makes to the end of victory. The argument as stated, however, sets the interests of individuals and of mankind at a lesser value than the victory that is being sought … Once again proportionality turns out to be a hard criterion to apply, for there is no ready way to establish an independent or stable view of the values against which the destruction of war is to be measured.9

Walzer says that Sidgwick thinks this is an inescapable problem because he relies on the relativity of utilitarian calculations. To remedy this problem, Walzer argues that we should turn to a theory of rights. Specifically, Walzer says that a “legitimate act of war is one that does not violate the rights of the people against whom it is directed.”10 He singles out the ban on civilian rape and murder during war as an attempt to mark these violations of human rights as of supreme disvalue. But he also claims that if a person has done “some act of his own” whereby “he has surrendered or lost his rights,” then rights to liberty, and also life, can be infringed during war. Of course, Walzer needs this proviso because otherwise war could never be just since it always involves the violation of the rights to life of soldiers (as well as civilians). But, to my mind, Walzer then makes a counterintuitive move when he embraces, at least tentatively, the Napoleonic dictum that soldiers 8 This is sometimes referred to as the double currency problem. In economics it is common to have goods that are valued in one currency being proposed for trade for goods that are valued in a second currency. For the trade to be effected, there must be some way to translate values in one currency into values in another. For a useful discussion of this problem as it arises in bioethics, see Michael Selgelid, “A Moderate Pluralist Approach to Public Health Policy and Ethics,” Public Health Ethics, vol. 2, no. 2, 2009, pp. 195–205. 9 Walzer, Just and Unjust Wars, p. 129. 10 Ibid., p. 135.

Proportionality and the fog of war

223

“are made to be killed.”11 I partially support Walzer’s “moral equality of soldiers”  – that is, the view that soldiers are all to be treated the same regardless of whether they fight on the just or unjust side of a war – as I’ve argued elsewhere.12 But I do not support this abrogation of the rights of soldiers, especially their rights to life. In part, it is my disagreement with Walzer about such matters that has caused me to embrace contingent pacifism rather than to remain within the confines of a Walzerian Just War perspective. So, there are alternative accounts of rights and their importance that make it not true that an appeal to rights can solve all of the proportionality problems identified above. In the case of retribution, there are the rights of the victims to consider, and perhaps to be weighed against the utilitarian value of achieving peace, modified by the non-utilitarian qualifier of the peace being just. The value of a specific peace is not the same as some other peace. At least in part, as Walzer also suggests, we are looking for a peace that is better than before the war started: “The object in war is a better state of peace.” And better, within the confines of the argument for justice, means more secure than the status quo ante bellum, less vulnerable to territorial expansion, safer for ordinary men and women and for their domestic self-determinations … The theory of ends in war is shaped by the same rights that justify the fighting in the first place – most importantly, by the rights of nations, even of enemy nations, to continued national existence and, except in extreme circumstances, to the political prerogatives of nationality.13

Here we are still in the domain of the calculations of proportionality, where the end of war that has to do with a just peace is to be valued relative to the peace in the status quo ante bellum. This is an important start at understanding jus post bellum proportionality, but so far it is only a start. What Walzer singles out as the ends worth pursuing through war will not sound today like the ends that are most important. For Walzer downplays what he refers to as humanitarian concerns as merely matters of “kindness.”14 He is mainly interested in the self-determination of States, and other “rights of nations.” In this he seems to be a Statist, as he has called himself, as opposed to a cosmopolitan on the morality of war.15 The ends of war, for Walzer, are about protection of rights, but primarily it 11 Ibid., p. 136. 12 See Larry May, War Crimes and Just War, NY: Cambridge University Press, 2007. 13 Walzer, Just and Unjust Wars, pp. 121–23. 14 Ibid., p. 135. He somewhat modifies this view in Arguing about Wars, pp. 76–77. 15 There is a third alternative, often referred to as the “Society of States” perspective. I think Walzer fits better into this category, as do I. See my discussion and defense of this view in Larry May, Global Justice and Due Process, Cambridge University Press, 2011.

224

Prop or t ion a l i t y a n d t h e e n d of wa r

is the protection of the rights of nations. Of course, nations have rights insofar as they protect the rights of their citizens, on Walzer’s account. But, in his view, it is collective rights rather than individual ones that wars are aimed to secure. There is a fascinating discussion of reconciliation concerning the annexation of Alsace-Lorraine in 1871 in Walzer’s section on jus in bello. Here is what he says: It is important, then, to make sure that victory is also in some sense and for some period of time a settlement among belligerents. And if that is to be possible, the war must be fought, as Sidgwick says, so as to avoid “the danger of provoking reprisals and of causing bitterness that will long outlast” the fighting. The bitterness that Sidgwick has in mind might, of course, be the consequence of an outcome thought to be unjust … but it may also result from military conduct thought to be unnecessary, brutal, or unfair or simply “against the rules.” So long as defeat follows from what are widely regarded as legitimate acts of war, it is at least possible that it will leave behind no festering resentment …16

Walzer then uses an analogy to family life, of how to bring a feud to a peaceful end, and argues that confining war within minimal moral limits means that the “possibility of reconciliation remains open.”17 And he ends this discussion by saying: “Some limits must be commonly accepted, and more or less consistently maintained, if there is ever to be a peace short of the complete submission of one of the belligerents.”18 If there is to be any hope of achieving post war reconciliation then retribution and other acts that would provoke bitterness or reprisals need to be limited. But there is more here as well, giving a post war view of how to see jus in bello. The tactics used during war, especially ones that are in violation of the rules of war, will have detrimental effects on the likelihood of a lasting peace. Despite nationalist fervor that would impel a State to use whatever tactics look likely to increase the chance of victory, these tactics are likely to make lasting peace much more difficult than if they were not used. Can there be an explanation within the Just War tradition for giving more weight to one’s own civilians than to those of the enemy, even more than to civilians of the enemy State? One possible strategy is to argue that when a State or State-like party engages in unjust war the injustice of its aggression taints all other aspects of the war, including jus in bello ­considerations such as civilian immunity. This strategy has been 16 Walzer, Just and Unjust Wars, p. 132. 17 Ibid., p. 133.  18  Ibid., p. 133.

Proportionality and the fog of war

225

suggested by at least one author recently,19 and seems to be supported by Walzer as well. Even if one is tempted by such a strategy, there are important jus post bellum considerations that should also be brought into the discussion that would bring the issue of casualties back to a position where all lives are kept in highest regard – that is, where the value of human life was before nationalist sentiments entered in. In post war reconciliation it is important that one side in a war not appear to disfavor, and even attack, innocent civilians just because they fell on what appeared to be the unjust side of a war. One could contend that civilians on an unjust side, especially those who could have stopped the war but did not act to stop it, are not truly innocent. This is hardly true of all civilians in any event – think of very young children – but the key jus post bellum consideration is that the noncombatants on the enemy side were not being treated with the respect and dignity they deserved. In the post war situation, if people have not been treated rightly during the war, it will make reconciliation vastly more difficult than if they had been afforded some respect, especially if they were innocent. And the form of disfavor that is based on nationalism is the most difficult to counteract or outweigh in convincing people now to act peaceably toward each other. 1 2 .3   r e t h i n k i ng prop or t ion a l i t y The principle of proportionality is typically said to have two parts, one part about how wars should be initiated and one part about how wars should be fought. The first proportionality principle, often called the political principle of proportionality says that “a war cannot be just unless the evil that can reasonably be expected to ensue from the war is less than the evil that can reasonably be expected to ensue if the war is not fought.” The second principle, often called the military principle of proportionality says that “the amount of destruction permitted in pursuit of a military objective must be proportionate to the importance of the objective.”20 In my view, these two proportionality principles, one aimed at the initiation of war and the other aimed at tactics, are very hard to calculate in a way that would support a given war. Douglas Lackey says “given the destructiveness of war, the rule of proportionality … would declare that almost all wars, even wars with 19 Rodin, “Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression,” p. 67. 20 Douglas P. Lackey, Ethics of War and Peace, Upper Saddle River, NJ: Prentice-Hall, Inc., 1988.

226

Prop or t ion a l i t y a n d t h e e n d of wa r

just causes, have been unjust wars.” Lackey then proposes that, to avoid “antiwar pacifism,” the proportionality principle be amended to say that a practice passes the proportionality tests “unless it produces a great deal more harm than good.”21 When Walzer comes to address in bello proportionality, he says, also because of difficulty in calculating, that it should be understood as ruling out “only purposeless or wanton violence.”22 In Arguing about War, Walzer is even clearer: “Nonintervention gives way to proportionality only in cases of massacre or in cases of politically induced famine and epidemic, when the costs are unbearable.”23 For both Walzer and Lackey, ad bellum and in bello proportionality do not do any work except in marginal cases. Walzer, like Lackey, is concerned that an otherwise intuitively sound proportionality principle would lead Just War adherents to embrace pacifism. Both Walzer and Lackey thus consistently support the justice of wars and dismiss pacifism. But I think we must not redefine principles so as to get a pre-determined result, especially concerning the third proportionality principle. The third proportionality principle concerning jus post bellum, involves the conditions necessary for achieving a just peace: they cannot impose more harm on a population than the harm that is alleviated by these post war plans.24 This third proportionality principle is premised on the idea that post war efforts to achieve a just and lasting peace should not inflict more harm than good on the populations affected. And in this sense, jus post bellum proportionality is grounded in the same considerations as the jus ad bellum and jus in bello proportionality principles. But it is also true that the jus post bellum proportionality principle forces us to confront a larger issue, of the total effect of a war, in ways that the other two proportionality principles do not. The jus post bellum proportionality principle forces us to think about what the effects of the war have been and about what it will take to reverse some of the most harmful effects by rebuilding efforts, both the rebuilding of damaged property and the rebuilding of the kind of mutual respect that is necessary for the rule of law. In this way, the third proportionality principle is in my view at least as significant as the other two proportionality principles, and can be used to shed light on how best to understand these other jus ad bellum and jus in bello proportionality calculations. 21 Ibid., pp. 40–41. 22 Walzer, Just and Unjust Wars, p. 129. 23 Walzer, Arguing about War, p. 92. 24 See Brian Orend, “Jus Post Bellum: A Just War Theory Perspective,” in Stahn and Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, 2008, p. 40.

Proportionality and the fog of war

227

I propose two normative jus post bellum proportionality principles as a bridge into the proper application of jus ad bellum and jus in bello proportionality principles: Whatever is required by the application of other normative principles of jus post bellum must not impose more harm on the population of a party to a war than the harm that is alleviated by the application of these other post war principles.

This is what might be called the domestic jus post bellum proportionality principle. There is also its international variation: Whatever is required by the application of other jus post bellum principles must not impose more harm on the peoples of the world than is alleviated by the application of these principles.

We should treat these as distinct principles since they have different addressees. The problems that Walzer identified with proportionality in general, especially the difficulty of determining what the ends are and what their comparative values are, are still evident in jus post bellum proportionality. Indeed, the major problem of how nationalist sentiments color our perceptions and provide a fog over all aspects of war is apparent also in jus post bellum proportionality. As we will see, some of the uncertainties are lessened when we add jus post bellum proportionality concerns, but other problems will still remain. It is for these and similar reasons that I will argue in favor of contingent pacifism rather than a Just War approach. Walzer spends very little time on pacifism in Just and Unjust Wars, instead devoting his final chapter to nonviolent resistance, but not to larger issues of pacifism. I subscribe to a view commonly called contingent pacifism that holds that war is so likely to involve the killing of the innocent that the moral risks of serving in any given war are normally not worth it. Walzer would presumably be opposed to this view for similar reasons that he is opposed to nonviolent resistance, namely that it is not a realistic alternative to war in cases where there is a war-mongering State. Contingent pacifists can admit that in principle such cases might exist but deny that there are many if any in real life. The example that Walzer refers to the most, the war of the Allies against Nazi Germany25 seems to support his view, but there are not many others in Walzer’s book, and there are unlikely to be many especially in light of the problems of the fog of war that we will next explore.

25

  Walzer, Just and Unjust Wars, p. xvi.

228

Prop or t ion a l i t y a n d t h e e n d of wa r 1 2 . 4   t h e f o g of wa r a n d t h e f i r e b om bi ng of t ok yo

At this stage, I wish to consider an extended example from real life as portrayed in an intriguing and revealing documentary film from 2004. “The Fog of War: Eleven Lessons from the Life of Robert McNamara” was an award-winning film produced and directed by Errol Morris. The subject of the film, Robert Strange McNamara, is best known as defense secretary of the United States during the beginning of the Vietnam War, often referred to at the time as McNamara’s War. He is less well known as the person largely responsible for the US decision to firebomb Tokyo near the end of the Second World War. The film is mainly an interview with McNamara about his experiences during war. McNamara maintains that one of the first lessons he learned was: “The human race will not eliminate war in this century but we can reduce war, the level of killing, by adhering to the principles of just war, in particular proportionality.” When political leaders reflect back on their careers, they tend to portray themselves in the best possible light, and McNamara is no exception. It was especially telling in the discussion of Lesson 5 of the film, “Proportionality should be a guideline of war,” how McNamara characterizes his role in the US war against Japan. He describes quite coldly the fact that in one night the US firebombed Tokyo, killing over 100,000 civilians. He attempts to defend this action by saying that such a strategy prevented the loss of many US soldiers if the war had gone on longer, even as he recognizes that his judgment is clouded by the fog of war. This is clearly not a proper proportionality argument. For it to be so, McNamara would have to explain what was gained that was equivalent to such a horrible loss of innocent life – after all these were 100,000 men, women, and children who were not soldiers and who were burned to death, an especially awful way to die. And more importantly, McNamara would have to explain why he thinks that proportionality calculations can be made whereby civilian lives, even very many civilian lives, can be outweighed by the lives of soldiers, especially a lesser number of lost soldiers’ lives. McNamara’s own emotional reactions are also telling here. He does not express remorse or regret for the deaths of the civilians, as I said describing them quite calmly and coldly. But when, in the same scene he recalls that one US pilot was killed during those firebombing raids, he gets teary-eyed and has trouble speaking. While the loss of a single soldier during war is of course also regrettable – on grounds of proportionality

Proportionality and the fog of war

229

it surely pales by comparison with 100,000 civilians burned to death. Yet McNamara seems to be more upset by the loss of one US soldier than the loss of 100,000 Japanese civilians. This is hardly to show a concern for the jus in bello principle of proportionality, unless enemy lives, especially civilian lives, are discounted, even more than the lives of soldiers are normally discounted, when they are on the unjust side of a war. Here is where a proper consideration of the jus post bellum proportionality principle would help. The effects of the firebombing of the civilian population of Japan made reconciliation much harder than would have been true of the loss of one US soldier’s life. Nationalism may make McNamara think that one of his fellow compatriots’ lives is of incredibly high value. But jus post bellum considerations make us somewhat discount these nationalistic concerns, since nationalistic concerns are some of the most invidious motivations standing in the way of post war reconciliation. The Japanese cannot be expected to engage in reconciliation if they believe, rightly, that Americans treated Japanese civilian lives so cavalierly. And it appears that this was indeed true of post war Japan.26 The fog of war does not cloud everything, although it does make Just War calculations harder than is normally admitted. McNamara is also simply wrong to think that the political or military leaders of a State that goes to war can shield themselves from moral or legal responsibility by pointing to those higher up the chain of command as the truly responsible ones. But there is an interesting question raised here about whether political and military leaders who launch an illegal aggressive war should be held to a higher standard of responsibility for the destruction that war generates than those political and military leaders who launch a just and defensive war. In jus ad bellum terms there certainly should be different standards, and indeed the leaders on the just side would not be prosecutable at all. But in jus post bellum terms, I believe that both sides should have responsibilities in the aftermath of war, and that the fact of which side one was on should not make a major difference either for moral or legal responsibility. Political and military leaders have to understand the rules of war (at the initiation of war, the conduct during war, and the aftermath of war) as true restraints on their behavior, not as things to be gotten around by clever arguments of the sort McNamara employed at various points in the film. This idea, that some, although very few, wars can be justified, is the 26 See Ian Buruma, Wages of Guilt: Memories of War in Germany and Japan, NY: Vintage Books, 1995.

230

Prop or t ion a l i t y a n d t h e e n d of wa r

cornerstone of the United Nations Charter, the founding document of international law today. The Charter says that all armed conflict that violates the territorial integrity or sovereignty of a State is forbidden, and the 1948 Geneva Conventions similarly set the tactical rules for the waging of war. Only wars of individual or collective self-defense can be justified in international law today, and only those that are necessary for self-defense until the United Nations itself is ready to take action.27 The debates about the United Nations Charter and the Geneva Convention show that Just War theory played a profound role in the thinking of the founders of these seminal documents on the international rules of war. Today, we have international courts that attempt to enforce these provisions. And these courts have made it clear that what they are largely enforcing are principles that one can trace back at least into the Just War tradition in the Middle Ages. Indeed, the very same Latin terms: jus ad bellum – justice of war, and jus in bello – justice in war, are used by both the Just War tradition and contemporary international law. I think that the term jus post bellum should also come into the international law lexicon and take up some of the ground covered already by the category of transitional justice, but with an eye toward guiding moral principles. But doing so is complicated by the fog of war. In one sense, the fog of war is a metaphor for the way nationalist sentiments and the drive for victory cloud judgment during wartime. Even well-intentioned people have a hard time discerning what the right thing to do during wartime is. Decisions to send young men and women into battle, knowing many are likely never to come home, would seem to be hard decisions to make in the best of circumstances. But during war, political leaders sometimes seem to make these decisions effortlessly. At least in part this is because the normal judgments of people are clouded by the above mentioned nationalist sentiments. In another sense, the fog of war is a metaphor for the unpredictability of war. Wars often seem to have clear rationales and also clear paths to victory at the outset. But wars rarely proceed as predicted, and even the initial rationales change significantly during the course of a war. Consider the second Iraq war. The US and its allies invaded Iraq to stop it from using weapons of mass destruction. Once it became clear that there were no weapons of this sort, the rationale for the war was changed several times. Even the cause of war sits in this domain of unpredictable “fog.” And nearly every other aspect of war is also often hard to predict

  See the United Nation’s Charter, Articles 2/4 and 51.

27

Proportionality and the fog of war

231

in advance. During wartime, or during the lead-up to war, we can see where we are at the moment, but because of the fog we cannot see very far into the future. This matters because tactical and end-game assessments become unreliable, as Walzer and Lackey admitted. The “fog of war” makes the principles of each of the parts of the Just War tradition hard to apply. Jus ad bellum principles call for wars to be waged only for just causes. If the causes change during the course of the war, perhaps because it was insufficiently clear what conditions would be found on the ground when the war in a distant part of the world actually is begun, then the principle of just cause, the linchpin of jus ad bellum, is made very difficult to apply. Jus in bello principles call for a prediction of what are the likely casualties in a given strategy of war. If the number of casualties is very difficult to predict then the principle of proportionality, a cornerstone of jus in bello, will be very difficult to apply. Finally, jus post bellum principles call for ascertaining whether, for instance, criminal trials will increase or decrease human rights abuse in a given society. If it is difficult to predict what will be the effects of indicting, arresting, and prosecuting a sitting head of State, in human rights terms, then it will be very difficult to apply jus post bellum principles as well. And we will not be helped by adopting a Just War position as much as might have been hoped. It is undeniable that the “fog of war” makes the normative principle against civilian targeting very difficult to apply. In one sense the fog of war does not matter, namely concerning the intentions of the military actors in ordering a particular tactic to be used. But in another sense the fog of war creeps back in. This is because the choice of tactics is premised on achieving certain results, as well as what is thought to be true of the likelihood of civilians not being in a certain area where the tactic is to be employed. The fog of war can interfere with such calculations and hence with the moral basis of these intentional actions. In addition, the fog of war can make the assignments of value to civilian lives more difficult to do in any kind of objective manner since such factors as nationalism will make one more likely to assign less value to civilian lives associated with the enemy forces, and more value to civilian lives associated with one’s own side in a war. So, the fog of war will cloud judgments and make it less likely that the loss of civilian lives will be given its due, treating the lives of one’s own soldiers as more important than the civilians on the enemy side. As I have argued, this will make reconciliation and other post war goals very difficult to achieve. And once again, I am led to wonder about the option of pacifism given the indeterminacies within Just War thinking.

232

Prop or t ion a l i t y a n d t h e e n d of wa r 1 2 .5   c on t i ng e n t pac i f i s m a n d

j u s p o st be l lu m

Contingent pacifism is the best response for soldiers who are contemplating participating in wars. Today, some people who are pacifists do not have absolute principled reasons to oppose violence, or even to oppose all wars. Rather they are opposed to war because of a concern that war will likely involve killing the innocent or on grounds of other moral risks of participation in modern wars. Contingent pacifism calls for a case-bycase assessment of whether a given war involves the moral risks that make participation in that war morally problematic. As with others who have argued for this position, sometimes called “Just War pacifism,” I look to the Just War tradition for the criteria by which war is to be judged morally problematic. And like other recent pacifists, I focus on the killing of the innocent in war as that which makes war most problematic.28 Indeed, this way of thinking of pacifism makes it a common-sense view rather than a view that is “unworldly.” Just War adherents will need to counter the seeming common sense of the contingent pacifist’s advice to soldiers. In my view, we should encourage all soldiers to resist going to war unless they strongly believe that it is a just war. This is consistent with the Just War tradition. What marks the Just War tradition off from contingent pacifism is the further claim that such strong belief will rarely if ever be warranted. Then the contingent pacifist makes the following move. Since it is so hard to determine whether wars are just and hence for soldiers to take the moral risk that their actions will turn out to be instances of unjustified killing, the better strategy for soldiers is not to participate in war at all. Even when one country attacks another country, there is serious risk that the attacking country may have been provoked. Hence, soldiers on both sides normally should not take the moral risk that they may be put in a position of killing the innocent. Most importantly, soldiers on one side cannot rest assured that the people they will be expected to kill are not innocent. So, there are a variety of moral risks, especially in light of the fog of war, which a soldier should consider, and that jointly support contingent pacifism. First, a soldier risks killing civilians, and this is increasingly so in modern wars. And many of these civilians are innocent. Second, a soldier risks wrongfully participating in a known unjust war, even if what 28 See Jenny Teichman, Pacifism and the Just War, Oxford: Basil Blackwell Ltd, 1986, especially ch. 7; Robert L. Holmes, On War and Morality, Princeton University Press, 1989, especially ch. 6; and James P. Sterba, “Reconciling Pacifists and Just War Theorists,” Social Theory and Practice, vol. 18, no. 1, Spring 1992, pp. 21–38.

Proportionality and the fog of war

233

he or she does in such a war is following legitimate orders. Third, a soldier runs the risk that what he or she thought was a just war was actually an unjust war, and hence that he or she is participating in an unjust war after all. Fourth, even among those soldiers fighting in a just war, a soldier risks unjustified killing since not all enemy soldiers are liable to be attacked and killed, assuming with most Just War theorists today that the moral equality of soldiers does not obtain. And in any event, soldiers run the risk of killing civilians who are innocent. Thus the moral risks of participating in war are great. But, these moral risks can be overridden by other moral considerations. Hence, the soldier still needs to examine each war on a case-by-case basis. Transitional justice is implicated in these debates in that it is often the case that reconciliation is made harder when some people feel that they are entitled to attack others, especially if they believe that those attacked have no right to complain. Assessing wars as a matter of objective moral judgment, rather than from the subjective perspective of those who participate in war, sometimes makes reconciliation in the aftermath of war very difficult, especially in cases of civil war, which are increasingly the wars that are faced today. Even if the war is between States, given the high degree of globalization today, returning to an isolated existence where one can simply continue to hate an enemy that one never again encounters, is increasingly unlikely. In the aftermath of war, people need to resume thinking of each other as fellow citizens, or at least as fellow humans, and to break the cycle of mutual hatred. For all of its other faults, the moral equality of soldiers fostered reconciliation since soldiers were not seen as guilty for having fought, and could return home and be more easily assimilated than if they came home and were treated as somehow guilty.29 In line with contingent pacifism, opening up the possibility of greater conscientious refusal options means that those who do fight are those who have indeed chosen to do so because they do not think that fighting is morally risky, or because they think the risk is worth it. When these soldiers return home they are less likely to be resentful of having been exposed to personal risk for their communities. And those who did not serve should not be resentful of those who did either, since all acted on what they conscientiously believed to be the right course. It is my belief that this will make for more harmonious relations after the war is over. In 29 See Larry May, Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005, last chapter.

234

Prop or t ion a l i t y a n d t h e e n d of wa r

my view, such considerations should count quite a lot, even though they are not overriding, and may make the project of figuring out what is the right way to think about the issues we have been addressing not as simple as one might otherwise think. One could object that when large numbers of young men and women can get out of military service by means of conscientious refusal, then those who do fight might be resentful of those who refuse to fight. But when all are doing what seems to them to be the morally right thing to do, resentfulness need not occur. Of course, war tends to bring out strong passions especially about what others have reason to do. And this may result in resentment, even if this is not an inevitable result. But if pacifism is contingent then it may be overridden by other contingent factors. It may turn out, for instance, that those who stayed home because of serious conscientious misgivings about participating in the war, are seen as similar to those who followed their consciences and participated in war. Indeed, especially if people do not think that those who fought or those who stayed behind are somehow guilty, it may be possible for a dialogue between both groups to open that may actually promote reconciliation. Of course it may also lead to greater numbers refusing to fight in the next war, but that is a price that societies need to be willing to pay. Such a result is not necessarily at odds with either traditional pacifism or just war. We need to think more about how various proposals affect reconciliation and other jus post bellum goals. The form of contingent pacifism I support tries to give the benefit of the doubt to all, and not to treat soldiers or conscientious objectors as somehow guilty for what they have done. Such a strategy will make reconciliation easier. Indeed, it seems to me that one principle of jus post bellum is that one should employ the principle of charity especially toward soldiers who thought that their participation in war was merely the patriotically responsible thing to do. Contingent pacifists need not condemn or blame such returning soldiers, even as we try to counsel them that not participating in war is often the morally less risky option. I invite those who oppose contingent pacifism to explain what sort of reaction to such soldiers, in light of concerns about jus post bellum, their own theories countenance. 1 2 .6   t h e e n d of wa r Lesson Eleven of the McNamara film, the last lesson, is succinctly put: “You can’t change human nature.” Reflecting on the fog of war, especially

Proportionality and the fog of war

235

in light of unchanging human nature, should make us have questions about the end of war. By this I mean to refer to two meanings of the end of war. In this book, I have written quite a bit about the normative principles that should guide us at the end of a particular war. But I now want to begin to raise questions about another meaning of the end of war, when wars will come to an end, namely when people will choose to settle their disagreements by other means than the organized use of violence that is the mainstay of war. In light of the fog of war, and especially the likely skewing of facts by nationalist fervor that seems endemic to human nature, it seems unrealistic to think that the leaders of States will be able appropriately to predict what the facts will be and how the principles of the Just War tradition should be applied. In such circumstances, surely the better option is not even to contemplate war as a means of dispute resolution. Such considerations would not put an end to war altogether, but as a contingent matter we may then be at the point where talk of the end of war makes more sense than it does for most people today. It is unclear to me why Walzer, for instance, does not come to a similar conclusion given his forthright assessment of the difficulties of making proportionality assessments at all stages of war. He does occasionally express his uncertainty about the morality of war, as when he says “I am not sure the morality of war is wholly coherent,”30 but “pacifism” does not appear in the index to Just and Unjust Wars. Considering the problems of the fog of war should make us all take a closer look at the idea of the end of war. In his more recent book, Arguing about War, Walzer does take up the recent movement by some former Just War supporters toward various versions of pacifism. Here is how he characterizes this move: The move involves a new stress upon two maxims of the [Just War] theory: first, that war must be a “last resort,” and second, that its anticipated costs to soldiers and civilians alike must not be disproportionate to (greater than) the value of its ends. I do not think that either maxim helps us much in making moral distinctions that we need to make.31

Above I have tried to give reasons to reject this assessment by Walzer. In my view, the fog of war offers some of the best reasons for supporting contingent pacifism rather than the Just War approach epitomized by Walzer. As soldiers face increased difficulty of understanding whether the war they are asked to fight is a just war, the moral riskiness of fighting   Walzer, Just and Unjust Wars, p. 22.  

30

  Walzer, Arguing about War, p. 86.

31

236

Prop or t ion a l i t y a n d t h e e n d of wa r

in an unjust war should make soldiers increasingly cautious. And as the causes of wars are harder and harder to discern through the fog of war, the reasonable strategy for soldiers is to decline to fight lest they find themselves in the morally unpalatable position of being unjust combatants. The end of war is probably utopian if this is meant as the literal once and for all end of wars ever being fought.32 But the end of war need not be thought of in this utopian way – we can think of it in light of contingent pacifism. Wars can be so unlikely to be justifiably fought that the default position is not to fight, and this will mean as a contingent matter that we stop seeing the end of war as an instrument of foreign policy and also not see war as one thing to contemplate in dispute resolution, other than in the direst cases of last resort. If political and military leaders come to think of war only as an absolute last resort, and even then as something that should be regretted rather than celebrated, then the promise of the guiding ideas of the Preamble of the Charter of the United Nations will perhaps be implemented. Paradoxically, reflecting on the fog of war leads me once again to think hard about the challenge of the pacifists, from the earliest of times when theorists contemplated the idea of war. And in this respect, the traditional pacifists may have been too utopian in proposing a literal end to war. But the position of contingent pacifism seems to me to follow easily on the heels of contemplating the fog of war. The fog of war brings home to us the idea that precise predictions can rarely be made due to the strong sentiments that cloud judgment when war is contemplated. And the ability to know that one is fighting a just war diminishes in the fog. If rules need to be followed for war to be justified, and if it is very difficult to follow these rules, or even to discern the facts, due to the fog of war, then accepting the need to follow these rules leads to a kind of stalemate. In this stalemate the end of war, and the plausibility of pacifism, at least as a contingent matter, seem to have the upper hand. 1 2 .7   c onc lu di ng t houg h t s Throughout this book, I have argued that we need normative principles for after war ends, just as much as we need normative principles for the initiation and conduct of war. Indeed, I have argued for a specific set of normative principles that I think are especially good ones to embrace, namely retribution, reconciliation, rebuilding, restitution, reparations,

  See Walzer, Just and Unjust Wars, p. 329.

32

Proportionality and the fog of war

237

and proportionality. And I have provided an account of each of these principles along with some of the conceptual and normative difficulties with understanding and applying each of them. In this final section, I will summarize some of the most important findings. One of the most significant of my findings is that all parties to a war need to take seriously their post bellum responsibilities. After war ends, it makes little difference if a State was an aggressor or defender, or even if a State is victor or vanquished. When a State initiates war, regardless of the reason for doing so, that State should realize that it thereby already takes on jus post bellum responsibilities. If the US had understood that fact when it initiated war in Iraq and Afghanistan, there might have been a different result, at least in the sense that there should have been an “exit strategy,” a plan for how to help rebuild these countries after the wars end. In addition, I argued that reconciliation needs to be taken much more seriously than it normally is, especially in light of the fact that all wars can only lay claim to be just if they have as their end a just and lasting peace. There is little chance of achieving a lasting peace if the sides to the war are unreconciled. But taking reconciliation seriously has its costs, in terms of the tactics that can be used as well as the causes that can bring one to initiate war. When we take reconciliation seriously, it will still be possible to hold war crimes trials, but it will often be better to hold such trials during rather than at the end of war. In addition, rebuilding, restitution, and reparation efforts will have to be shared and aimed at allowing the defeated State to recover the rule of law, and the mutual respect that is its grounding, as quickly as possible. Another of my conclusions is that proportionality assessments disclose how difficult any of the Just War principles are to apply to actual wartime situations. This conclusion is the beginning of a discussion of whether Just War principles, especially jus post bellum principles, can be accommodated so that a given war can indeed be called a just war. If the calculations are too difficult to work out in advance, the better strategy may be not to initiate or wage war in the first place, at least in many cases. Soldiers, and their leaders, should be very reluctant to engage in war since it is so hard to figure out whether any given war is a just war. And jus post bellum considerations, especially concerning rebuilding make these assessments even harder. I have come to the conclusion that pacifism is a plausible doctrine with mixed emotions since generally I have strongly supported the Just War tradition over the course of my professional career. In some of my most

238

Prop or t ion a l i t y a n d t h e e n d of wa r

recent writings I have begun to explore the plausibility of contingent pacifism.33 As I have come at the end partially to embrace contingent pacifism, perhaps this will render many of the other things I have argued for in this book distasteful to readers who think poorly of pacifism. I am willing to take this risk. It is a risk that scholars writing in the Just War tradition have not been as willing to take as they should. But it is important for my critics to take account of the variety of forms of pacifism, especially contingent pacifism that has been endorsed by scholars such as John Rawls.34 What was needed, according to Augustine, were fairly clear rules for the waging of war. Many believe that, with relatively clear rules, one might say today even the fog of war can be seen through, and the possibility of atrocities or horrible harms to civilian populations will be avoided. But even with clear rules, the fog of war persists in that it is difficult to know how precisely to apply these rules since the facts are often obscured. It is for this reason that caution is called for. Again, I wish to emphasize that the kind of pacifism I support is not significantly different from what is now considered nearly the orthodox interpretation of the meaning of the United Nations Charter Preamble. I will close by once again quoting from that document: We the People of the United Nations [are] Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.

Such a position is consistent with the idea of a Just War, but the United Nations Charter Preamble is increasingly better supported by the idea of contingent pacifism given the reality of wars such as we have known them, and such as they are likely to be in our lifetimes. 33 See Larry May, War Crimes and Just War, chs. 2 and 3; Larry May, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008, ch. 2; and Larry May, “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, vol. 25, no. 2, April 2011, pp. 95–111. 34 See John Rawls, A Theory of Justice, Cambridge, MA: Harvard University Press, 1971, p. 382, where Rawls said he was a “contingent pacifist” because he “conceded the possibility of a just war” “but not under present circumstances.”

Bibliography

Aeschylus, Eumenides, ed. and trans. Alan H. Sommerstein, Loeb Classical Library, Cambridge, MA: Harvard University Press, 2008. Allan, Pierre, and Alexis Keller (eds.), What is a Just Peace? Oxford University Press, 2006. Aquinas, Thomas, Summa Theologica, trans. Fathers of the English Dominican Province, London: Burns, Oates and Washburn, 1936. Aristotle, Nicomachean Ethics, trans. J. A. K. Thompson, London: Penguin Books, 2004. Bass, Gary J., “Jus Post Bellum,” Philosophy & Public Affairs, vol. 32, no. 4, Fall 2004, pp. 384–412. Blum, Gabriella, Islands of Agreement: Managing Enduring Armed Rivalries, Cambridge, MA: Harvard University Press, 2007. Boxill, Bernard, “The Morality of Reparations,” Social Theory and Practice, vol. 2, no. 1, Spring 1972, pp. 113–23. Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford University Press, 2004. Buruma, Ian, Wages of Guilt: Memories of War in Germany and Japan, NY: Vintage Books, 1995. Calley v. Callaway, United States Court of Appeals for the Fifth Circuit, September 10 1975, 519 F.2d 184. Cano, Ignacio, and Patricia Salvao Ferreira, “The Reparations Program in Brazil,” in Pablo de Greiff (ed.), The Handbook of Reparations, Oxford University Press, 2006, pp. 102–53. Chatterjee, Deen, and Don Scheid (eds.), Ethics and Foreign Intervention, NY: Cambridge University Press, 2003. Chou, Yvonne, “Uniform Exceptions and Rights Violations,” Social Theory and Practice, vol. 36, no. 1, January 2010, pp. 44–77. Cicero, De Officiis (On Duties) (c.45 bc). Coady, C. A. J., Morality and Political Violence, Cambridge University Press, 2008. Coleman, Jules, “Tort Liability and the Limits of Corrective Justice,” reprinted in Larry May and Jeff Brown (eds.), Philosophy of Law, NY: Wylie/Blackwell, 2010, pp. 330–37. Daly, Erin, and Jeremy Sarkin, Reconciliation in Divided Societies, Philadelphia: University of Pennsylvania Press, 2007. 239

240

Bibliography

Desmond, William, Cynic, Berkeley: University of California Press, 2008. Drumbl, Mark, “Editorial: Abu Ghraib Swept under the Carpet,” The New York Times, August 30, 2007.   Not So Simple: Child Soldiers, Justice, and the International Legal Imagination, Oxford University Press, 2011. Elster, John, Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, 2004. Evans, Gareth, The Responsibility to Protect, Washington DC: Brookings Institution Press, 2008. Falk, Richard, “Reparations, International Law, and Global Justice: A New Frontier,” in Pablo de Greiff (ed.), The Handbook of Reparations, Oxford University Press, 2006, pp. 478–503. Feinberg, Joel, Doing and Deserving, Princeton University Press, 1970. Freeman, Mark, Truth Commissions and Procedural Fairness, Cambridge University Press, 2006. Fuller, Lon, The Morality of Law, New Haven, CT: Yale University Press, 1962. Gardner, James, “Community Fines and Collective Responsibility,” American Journal of International Law, vol. 11, no. 3, 1917, pp. 511–37. Greiff, Pablo de, “Justice and Reparations,” in Pablo de Greiff (ed.), The Handbook of Reparations, Oxford University Press, 2006, pp. 451–77. Grotius, Hugo, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), trans. Francis W. Kelsey, Oxford: Clarendon Press, 1925.   De Jure Praedae (On the Law of Prize and Booty) (1605), trans. Gwladys L. Williams, Oxford: Clarendon Press, 1950. Hart, H. L. A., The Concept of Law, Oxford: Clarendon Press, 1961. Holmes, Robert L., On War and Morality, Princeton University Press, 1989. Holzgrefe, J. L., and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, NY: Cambridge University Press, 2003. Humphrey, Marcartan, and Jeremy Weinstein, “Demobilization and Reintegration,” Journal of Conflict Resolution, vol. 51, no. 4, 2007, pp. 531–67. Hurka, Thomas, “Proportionality in War,” in Larry May and Emily Crookston (eds.), War: Essays in Political Philosophy, NY: Cambridge University Press, 2008, pp. 127–44. Ignatieff, Michael, “State Failure and Nation Building,” in J. L. Holtzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, NY: Cambridge University Press, 2003, pp. 299–321. Jackson, Robert H., Report of United States Representative to the International Conference on Military Trials 50, 1945. Kant, Immanuel, “Perpetual Peace,” in Perpetual Peace and Other Essays, trans. Ted Humphrey, Indianapolis, IN: Hackett Publishing Co., 1983. Koskeniemi, Martti, “Between Impunity and Show Trials,” Max Planck Yearbook of United Nations Law, vol. 6, 2002, pp. 1–35.   The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870– 1960, Cambridge University Press, 2001.

Bibliography

241

Lackey, Douglas P., Ethics of War and Peace, Upper Saddle River, NJ: PrenticeHall, Inc., 1988. Le Mon, Christopher J., “Rwanda’s Troubled Gacaca Courts,” Human Rights Briefs, vol. 14, issue 2, Winter 2007, pp. 16–20. Locke, John, Two Treatises of Government (1682), ed. Peter Laslett, Cambridge University Press, 1989. Long, William J. and Peter Brecke, War and Reconciliation, Cambridge, MA: MIT Press, 2003. Luban, David, Julie O’Sullivan, and David Stewart, International and Transnational Criminal Law, New York: Aspen Publishers, 2010. May, Larry, Aggression and Crimes against Peace, NY: Cambridge University Press, 2008.   “Complicity and the Rwanda Genocide,” Res Publica, vol. 16, no. 1, March 2010, pp. 135–52.   “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, vol. 25, no. 2, April 2011, pp. 95–111.   Crimes against Humanity: A Normative Account, NY: Cambridge University Press, 2005.   Genocide: A Normative Account, NY: Cambridge University Press, 2010.   Global Justice and Due Process, Cambridge University Press, 2011.   “Hobbes on the Attitudes of Pacifism,” in Martin Bertman and Michel Malherbe (eds.), Thomas Hobbes: De la métaphysique à la politique, Paris: Librairie Philosophique J. Vrin, 1989, pp. 129–40.   “How is Humanity Harmed by Genocide,” International Legal Theory, vol. 11, no. 1, Summer 2005, pp. 1–23.   “Humanity and International Crime: Reply to Critics,” Ethics & International Affairs, vol. 20, no. 3, 2006, pp. 373–82.   “Integrity and Value Plurality,” Journal of Social Philosophy, vol. 27, no. 1, Spring 1996, pp. 123–39.   “International Law and the Inner Morality of Law,” in Peter Cane (ed.), Hart/ Fuller Debates 50 Years Later, Oxford: Hart Publishing Co., 2009, pp. 79–96.   “Metaphysical Guilt and Moral Taint,” in Larry May and Stacey Hoffman (eds.), Collective Responsibility, Lanham, MD: Rowman and Littlefield, 1991, pp. 239–54.   The Morality of Groups, University of Notre Dame Press, 1987.   “On Conscience,” American Philosophical Quarterly, vol. 20, no. 1, January 1983, pp. 57–67.   Sharing Responsibility: University of Chicago Press, 1992.   The Socially Responsive Self, University of Chicago Press, 1996.   War Crimes and Just War, NY: Cambridge University Press, 2007. May, Larry, and Stacey Hoffman (eds.), Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics, Lanham, MD: Rowman and Littlefield Publishers, 1991. McMahan, Jeff, Killing in War, Oxford University Press, 2009. McPherson, Lionel, “Innocence and Responsibility in War, Canadian Journal of Philosophy, vol. 34, 2004, pp. 485–506.

242

Bibliography

Mill, John Stuart, On Liberty (1863), ed. Stefan Colini, Cambridge University Press, 1989. Mitchell, Allison, “When Philosophical Assumptions Matter,” in Nancy Potter (ed.), Trauma, Truth, and Reconciliation, Oxford University Press, 2006, pp. 111–26. Moellendorf, Darrell, “Jus Ex Bello,” Journal of Political Philosophy, vol. 16, no. 2, June 2008, pp. 123–36. Mogelson, Luke, “The Beast in the Heart,” The New York Times Magazine, May 1, 2011, pp. 34–62. More, Thomas, Utopia (1516), trans. and ed. George M. Logan and Robert M. Adams, Cambridge University Press, 1989. Moreno-Ocampo, Luis, speech in Nuremberg, 25 June 2007. Murphy, Colleen, A Moral Theory of Political Reconciliation, NY: Cambridge University Press, 2010. Neff, Stephen C., War and the Law of Nations: A General History, Cambridge University Press, 2005. Orend, Brian, “Jus Post Bellum: A Just War Theory Perspective,” in Carsten Stahn and Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, The Hague: TMC Asser Press, 2008, pp. 31–52.   The Morality of War, Peterborough, ONT: Broadview Press, 2006. Rasmussen poll conducted in early April of 2011. Rawls, John, A Theory of Justice, Cambridge, MA: Harvard University Press, 1971. Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Centre, December 2001. Rodin, David, “Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression,” in Carsten Stahn and Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, The Hague: TMC Asser Press, 2008, pp. 52–76.   War and Self-Defense, Oxford University Press, 2002. Rome Statute of the International Criminal Court. Rotberg, Robert I. and Dennis Thompson (eds.), Truth v. Justice, Princeton University Press, 2000. Savage, Charlie, “Case of Accused Soldiers May be Worst of 2 Wars,” The New York Times, October 3, 2010, p. A1. Scharf, Michael, “From the Exile Files: An Essay on Trading Justice for Peace,” Washington and Lee Law Review, vol. 63, no. 1, 2006, pp. 339–87. Selgelid, Michael, “A Moderate Pluralist Approach to Public Health Policy and Ethics,” Public Health Ethics, vol. 2, no. 2, 2009, pp. 195–205. Shue, Henry, Basic Rights, Princeton University Press, 1980. Situation in Darfur, The Sudan, Summary of the Case, Prosecutor’s Application for Warrant of Arrest under Article 58 against Omar Hassan Ahmad Al Bashir, 14 July 2008.

Bibliography

243

Slye, Ronald, “Amnesty, Truth, and Reconciliation: Reflections on the South African Amnesty Process,” in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice, Princeton University Press, 2000, pp. 170–88. Spitz, Deborah, “How Much Truth and How Much Reconciliation: Intrapsychic, Interpersonal, and Social Aspects of Resolution,” in Nancy Potter (ed.), Trauma, Truth, and Reconciliation, Oxford University Press, 2006. pp. 127–38. Sterba, James P., “Reconciling Pacifists and Just War Theorists,” Social Theory and Practice, vol. 18, no. 1, Spring 1992, pp. 21–38. Straus, Scott, The Order of Genocide: Race, Power, and War in Rwanda, Ithaca, NY: Cornell University Press, 2006. Stromseth, Jane, David Wippman, and Rosa Brooks, Can Might Make Rights? Building the Rule of Law after Military Interventions, NY: Cambridge University Press, 2006. Suarez, Francisco, Disputation xiii, De Triplici Virtute Theologica: Charitate (“On War,” in Selections from Three Works: Charity) (c.1610), trans. Gwladys L. Williams, Ammi Brown, and John Waldron, Oxford: Clarendon Press, 1944. Teichman, Jenny, Pacifism and the Just War, Oxford: Basil Blackwell Ltd, 1986. Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, NY: Transnational Publishers, 1988. Tuck, Richard, Natural Rights Theories: Their Origin and Development, Cambridge University Press, 1979. Teitel, Ruti, Transitional Justice, NY: Oxford University Press, 2000. United Nations Charter. United Nations General Assembly, World Outcome Document (2005). Vattel, Emir de, Le Droit des gens, ou principes de la loi naturelle (The Law of Nations or the Principles of Natural Law) (1758), trans. Charles G. Fenwick, Washington: Carnegie Institution, 1916. Vitoria, Francisco, De Indis et de Jure Belli Reflectiones (Reflections on Indians and on the Laws of War) (1557), trans. John Pawley Bate, ed. Ernest Nys, Washington DC: Carnegie Institution, 1917. Walker, Margaret, Moral Repair: Reconstructing Moral Relations after Wrongdoing, NY: Cambridge University Press, 2006.   What is Reparative Justice? Milwaukee, WI: Marquette University Press, 2010. Walzer, Michael, Arguing about War, New Haven: Yale University Press, 2004.   Just and Unjust Wars, NY: Basic Books, 1977. Wellman, Christopher Heath, “Relational Facts in Liberal Political Theory: Is there Magic in the Pronoun ‘My,’” Ethics, vol. 110, no. 3, April 2000, pp. 537–62.   A Theory of Secession, NY: Cambridge University Press, 2005. Welsh, Jennifer M., and Maria Banda, “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?”, unpublished manuscript in the possession of the author.

244

Bibliography

Xenophon, Cyropaedia (The Education of Cyrus), trans. Henry Graham Dakyns, rev. F. M. Stawell, London: Macmillan, 1914. Zimmermann, Andreas, “Superior Orders,” in Antonio Cassesse, Paola Gaeta, and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, 2 vols., Oxford University Press, 2002, vol. i, pp. 970–72.

Index

Abu Ghraib, 73–74 adverse possession and restitution, 188 Al Bashir, 41, 79, 80 indictment of, 32–33 amnesty, 31, 37–40, 170 and human rights, 37, 38 and meionexia, 39 and principle of retribution, 40 and the rule of law, 120 and transitional justice, 39 for child soldiers, 169 vs. leniency, 212 Aquinas, Thomas, 164 Aristotle, 7 aut dedere aut judicare, 33, 36, 38, 40 bellum terminatio, 220 and jus post bellum, 4, 15 Biko, Steve, 98, 117, 170 Blackstone, William, 119 Brecke, Peter, 30 bystanders and gacaca trials, 116 and mass atrocity, 121–22 and reconciliation, 87, 88 and the rule of law, 108, 111, 112, 117–20 and truth commissions, 112 in Rwanda, 114, 115 Calley Jr., William L., 73, capacity building, 117, 118 and criminal trials, 109 child soldiers and amnesty, 169 Civil War, US and reconciliation, 94 and war crimes, 77 Coleman, Jules, 195, collective responsibility, 147 of states, 147–50, 158

compensation fund, world-wide, 194–96 contingent pacifism, 12, 227, 232–34 and the fog of war, 232, 235 and the Just War tradition, 232, 237 and reconciliation, 233, 234 and transitional justice, 233 Darfur, 30, 80 discrimination, principle of, 165 Doctors Without Borders, 126 Drumbl, Mark, 170 East Timor, 117 Evans, Gareth, 127, 152, 167 Feinberg, Joel, 194 fog of war and contingent pacifism, 232, 235 and jus post bellum, 230, 231 and the Just War tradition, 235 and proportionality, 229, 235 Fuller, Lon, 22, 101, 118 gacaca trials, 108 and the rule of law, 119 in Rwanda, 114–15, 116 genocide and just peace, 52, 53, 54 Grotius, Hugo, 119 and amnesty, 31 and human rights, 49–50 and just peace, 10 and meionexia, 9, 206, 215 and reparation, 206–09 and transitional justice, 8–9 and war crimes, 67, 68 on amnesty, 37–38 on reparation, 209–11, 212 Hart, H. L. A., 33, 118 Hobbes, Thomas, 88

245

246 human rights, 49, 128 and amnesty, 37, 38 and cosmopolitanism, 139 and jus post bellum, 18–19 and just peace, 18, 53 and the Just War tradition, 132 and reconciliation, 86 and Responsibility to Protect, 125, 128–31, 134–37, 140 and responsibility to rebuild, 178 and rule of law, 110–11 and war crimes, 69 basic vs. non-basic, 135 of soldiers, 131–34, 140, 222 humanitarian intervention, 11, 133 and Responsibility to Protect, 126, 127, 138, 155, 157 and sovereignty, 156, 157 Hurka, Thomas, 169 Hussein, Saddam, 100 International Criminal Court (ICC), 33 and compensation, 55 and Darfur, 30 and international rule of law, 41 and state sovereignty, 35 and war crimes, 58 on superior orders, 53 International Criminal Tribunal for Rwanda (ICTR), 108, 116 Jackson, Robert, 151 jus ad bellum and jus post bellum considerations, 12, 17 and just cause, 171, 174 relevance of jus post bellum considerations, 12–13 jus in bello principle of discrimination, 165 jus post bellum, 2–3 and bellum terminatio, 4, 15 and the fog of war, 230, 231 and human rights, 18–19 and jus ad bellum, 12–13, 15, 17 and just peace, 52 and natural law theory, 4 and proportionality, 175 and rule of law, 18 and sovereignty, 34–36 and transitional justice, 4, 6–9, 46 normative principles and Lon Fuller, 101 principle of proportionality, 21, 169, 221, 226, 227 principle of rebuilding, 19, 78, 168, 171

Index principle of reconciliation, 21, 75–77, 96–98, 101, 104 principle of reparation, 20, 78, 204–06 principle of restitution, 20, 189, 197 principle of retribution, 19, 36, 39, 51 just peace and genocide, 52, 53 and human rights, 18, 53 and jus post bellum normative principles, 22 and the Just War tradition, 50, 51, 55 and reconciliation, 102, 121 and retributive justice, 53, 54, 55 and rule of law, 121 and war crimes trials, 77 Just War tradition, 13 and contingent pacifism, 232, 237 and jus post bellum, 5 and jus post bellum vs. jus in bello, 104 and just cause, 166 and just peace, 50, 51, 55 and natural law, 47 and reconciliation, 93–94 and rights of soldiers, 132 and self-defense, 49 and transitional justice, 47 Kant, Immanuel, 52, 56–57 Koskenniemi, Martti, 57, 75 Kouchner, Bernard, 126 Lackey, Douglas, 225 Locke, John, 125, 126 Long, William, 30 Luban, David, 38 lustration and reconciliation, 99–101 Magna Carta, 119 Marshall Plan, 167 McNamara, Robert, 228–29 meionexia and amnesty, 39 and the First World War, 10 and leniency in reparation, 213 and reconciliation, 88–89 and rectification, 198 and transitional justice, 7–9 and truth commissions, 98 in Grotius, 206, 215 in Vattel, 52 Mill, J. S., 155 moral equality of soldiers, 90, 92, 233 More, Thomas, 46 Moreno-Ocampo, Luis, 32–33

Index Murphy, Colleen, 89 My Lai, 73, 74, 80, 92 natural law, 118 and the Just War tradition, 47 Nuremberg, 63, 82, 151 Orend, Brian, 15 O’Sullivan, Julie, 38 Pinochet, Augusto, 35, 36, 38, 40 principle of discrimination and jus ad bellum, 165 principle of proportionality. See proportionality, principle of principle of rebuilding. See rebuilding, principle of principle of reconciliation. See reconciliation, principle of principle of reparation. See reparation, principle of principle of restitution. See restitution, principle of principle of retribution. See retribution, principle of proportionality, 237 and the fog of war, 229, 235 and jus post bellum, 175 and just cause, 174 and principle of rebuilding, 171 and reconciliation, 102 and retribution, 223 and the Tokyo firebombing, 228, 229 principle of, 21, 169, 220, 225–27 and jus post bellum, 221 as meta-principle, 22 Rawls, John, 238 reasonable compensation principle of, 54–55 and retributive justice, 59–60 rebuilding principle of, 19, 168 and human rights, 178 and prevention of atrocity, 173 and proportionality, 171 and rule of law, 169 and sovereignty, 179 and war crimes, 78 reconciliation, 224 and bystanders, 87, 88, 108 and contingent pacifism, 233, 234 and human rights, 86 and jus in bello, 225 and just peace, 102, 237

247

and the Just War tradition, 93–94 and lustration, 99–101 and meionexia, 88–89 and proportionality, 102 and reception, 91–93 and reparation, 203, 214, 215 and restitution, 196 and retribution, 214, 224 and the rule of law, 107–10, 119–20 and treatment of soldiers, 103 and truth commissions, 98–99 and the US Civil War, 94 and war crimes trials, 75–77 principle of, 21, 96–98 and jus post bellum, 101, 104 and principle of proportionality, 169 and principle of retribution, 39 vs. retribution, 97 rectification and meionexia, 198 and restoration, 184 relational norms, 129 reparation, 201–03 and reconciliation, 203, 214, 215 and restitution, 202, 203 and retribution, 210, 211, 214 in Grotius, 206–11 leniency in, 211–13 principle of, 20 and jus post bellum, 204–06 and war crimes, 78 Responsibility to Protect, 125–28, 168 and capacity building, 151–54 and collective responsibility, 148, 150, 151, 153 and human rights, 125, 128–31, 134–37, 140 and humanitarian intervention, 126, 127, 138, 154, 157 and responsibility to rebuild, 171, 177 and sovereignty, 34, 155, 158 and Suarez, 47 and Vattel, 147 restitution and adverse possession, 188 and reconciliation, 196 and rectification, 192 and reparation, 202, 203 and worldwide compensation fund, 194–96 concept of, 187–89 of armaments, 191 of artifacts, 205 of territory, 189–91 principle of, 20, 189, 197 restoration and reparation, 183 and restitution, 183

248

Index

retribution and reconciliation, 224 principle of, 19, 36 and amnesty, 40 and principle of reconciliation, 39 and proportionality, 223 in Vattel, 51 Rodin, David, 4, 220 rule of law and amnesty, 120 and bystanders, 108, 111, 112, 117–20 and gacaca trials, 119 and human rights, 31, 110–11 and jus post bellum, 18, 101 and principle of rebuilding, 169 and reconciliation, 107–10, 119–20 and war crimes trials, 77, 79 in Rwanda, 116 Rwanda gacaca trials, 114–15, 119 rule of law in, 116 Scharf, Michael, 39 self-defense and principle of rebuilding, 172 as just cause, 171, 177 in the Just War tradition, 49 Slye, Ronald, 30 sovereignty and humanitarian intervention, 156 and the International Criminal Court, 35 and jus post bellum, 34–36 and principle of rebuilding, 179 and reconciliation, 43 and Responsibility to Protect, 34, 155, 157, 158 Stacy, Helen, 3 Stewart, David, 38 Straus, Scott, 114, 115–16 Stromseth, Jane, 107–10, 117, 118

Suarez, Francisco, 46–47, 164 and just peace, 10 superior orders and war crimes, 69 Teitel, Ruti, 203 Tokyo firebombing, 194, 228–29 transitional justice and amnesty, 39 and contingent pacifism, 233 and jus post bellum, 4, 6–9, 46 and the Just War tradition, 47 and meionexia, 7–9 and reasonable compensation, 54 and responsibility to rebuild, 167 and retribution, 39 and retributive justice, 58 and truth commissions, 98 truth commissions, 111 and just peace, 55 and reconciliation, 98–99 vs. gacaca trials, 117 United Nations Charter, 43, 93, 156, 157, 172 on illegality of war, 11–12 Vattel, Emir de, 45, 47, 51–2, 53, 126, 146–47, 148 Vitoria, Francisco, 45–46, 47, 166 Walker, Margaret, 201 Walzer, Michael, 219–26, 235 war crimes, 65, 66 and human rights, 69 and My Lai, 73 and superior orders, 69 at My Lai, 80 trials for, 67–70, 73, 78–79, 81 Xenophon, 8