Ethics Beyond War's End

Eric Patterson

• Publisher: Georgetown University Press
• Year: 2012
• ISBN:
  9781589018976
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The wars in Afghanistan and Iraq have focused new attention on a perennial problem: how to end wars well. What ethical considerations should guide war's settlement and its aftermath? In cases of protracted conflicts, recurring war, failed or failing states, or genocide and war crimes, is there a framework for establishing an enduring peace that is pragmatic and moral?

Ethics Beyond War's End provides answers to these questions from the just war tradition. Just war thinking engages the difficult decisions of going to war and how war is fought. But from this point forward just war theory must also take into account what happens after war ends, and the critical issues that follow: establishing an enduring order, employing political forms of justice, and cultivating collective forms of conciliation. Top thinkers in the field—including Michael Walzer, Jean Bethke Elshtain, James Turner Johnson, and Brian Orend—offer powerful contributions to our understanding of the vital issues associated with late- and post conflict in tough, real-world scenarios that range from the US Civil War to contemporary quagmires in Afghanistan, the Middle East, and the Congo.

CHAPTER 1

MORAL RESPONSIBILITY AFTER CONFLICT

The Idea of Jus Post Bellum for the Twenty-First Century

JAMES TURNER JOHNSON

JUST WAR THINKING is commonly described today as having two main elements: the jus ad bellum, which deals with the question of moral responsibility in the resort to the use of force, and the jus in bello, which deals with moral responsibility in how such force is actually used during an armed conflict. It may be argued that this way of sorting the issues leaves out another important question: that of the nature of moral responsibility after an armed conflict has ended. Some recent writers have accordingly argued that a third element is needed and should be developed in just war thinking, to which many of them have given the name jus post bellum. This line of analysis and argument raises three distinct issues, all of which are important: the connection between concern for the post bellum environment and just war thinking; the relevant history of moral, political, and military thought and practice regarding responsibilities after the end of an armed conflict; and the question of how to think about such responsibilities not only in the narrow context of the parties to the conflict but in the larger frame of the common good of the region in which the conflict has taken place, of other societies related to those involved in the conflict by cultural ties, and of the international order as a whole. This chapter addresses these issues.

Understanding the Just War Frame Correctly

First, what of the connection between concern for the aftermath of the use of armed force and just war thinking? Is the problem of moral responsibility after an armed conflict a new problem for just war thinking? To answer this sort of question requires attention to the nature of the idea of just war in itself. Recent discourse on morality and war includes many contemporary varieties of thinking with deep differences among them but which nonetheless are all advanced as forms of just war reasoning, as well as various positions critical of just war reasoning, each of which has its own conception of what such reasoning is. It is clearly important to make sure that thinking about morality and the use of armed force be focused on the realities of contemporary armed conflict and the contexts within which contemporary uses of armed force arise, but if such thinking is to be considered as just war reasoning, it is best to calibrate it by reference to the parameters defined and carried in the historical just war tradition.

This historical tradition has taken shape around a robust and long-lived definition of the idea of just war in terms of three fundamental moral requirements: that armed force must be undertaken only under the authority of a person or persons in a position of sovereign rule, and thus with responsibility for maintaining and protecting the goals of political community of order, justice, and peace; that armed force be used only when there is a just cause, understood in terms of defense of the common good as defined by such order, justice, and peace, for the redress of wrong done, or for the punishment of wrongdoers; and that armed force be used only with a right intention, avoiding the desire to dominate, unyielding animosity, the love of destruction and killing, and so on in favor of restoring peace or establishing it anew where there had been no peace. This understanding of just war—more properly, this understanding of when it is justified for a sovereign to employ armed force, and the responsibilities entailed—coalesced in Western thinking between the canonist Gratian’s Decretum, from the mid-twelfth century, and Thomas Aquinas’s Summa Theologiae, roughly a century and a quarter later. This conception remained robustly intact right up into the era of the Reformation, and it was on its basis that such thinkers as Grotius laid the foundations of the modern understanding of international law.¹ The best way to conceive what the idea of just war is about—its fundamental content and implications for moral conduct in the use of armed force—is by reference to this historical tradition of just war.

Let us be sure to observe that while today’s familiar typology would label these moral requirements—sovereign authority, just cause, right intention including the end of peace—as part of the jus ad bellum, this term was never used during the centuries from Gratian to Grotius. Rather, as Aquinas’s succinct discussion of these ideas makes clear, they are what defines when a war is just; they define bellum justum, just war. Specific canonical rules existed in this period requiring avoidance of harm to noncombatants and avoidance of certain weapons deemed too destructive to be morally used, but where the definition of just war was concerned, these were not included. What was going on? The answer has two facets.

First, there was a separately developing tradition focused specifically on the conduct of men under arms. This was the chivalric code, the loi d’armes—rendered in English as the law of arms and later the law of war, and in the Latin of the late medieval period as the jus in bello. As I have shown in my historical work on the just war tradition, this came together with the earlier tradition of bellum justum during the era of the Hundred Years War to form a fuller conception of just war, one which developed in greater detail the shape of moral conduct in the justified employment of armed force. So the first part of the answer to my question of what was going on in the initial coalescence of the just war idea is to admit that there was also this second line of development, coalescing somewhat later, that had to do specifically with conduct in the use of armed force.² When this came together, it made the earlier definition of bellum justum seem more specifically about the justified resort to such force. This was also the judgment of later generations, and the term jus ad bellum was coined to refer to this part of the broader idea of just war.

But for those involved in shaping the classical conception of bellum justum, it had to do with the entire spectrum of the use of armed force, not just the question of the justification of resort to such force. One sees this in every one of the three moral requisites that defined the classic just war idea. The authority of the sovereign is required, as only the sovereign, being responsible for the common good of all within the society, stands above the particular interests of everyone else. This is explicit in the canonists: Only the sovereign is in a position to be able to be a fair judge among competing private interests.³ But looked at closely, this idea that sovereignty implies responsibility for the common good extends beyond the sovereign’s own society to the order, justice, and peace of other societies as well: thus it is both a right and a responsibility of legitimate sovereigns to put down and punish tyranny, and to assist in establishing order, peace, and justice in societies that had been oppressed by tyranny. So at a closer look, the classic just war requirement of sovereign authority for the use of armed force is a much richer and stronger concept than what is typical of much present-day just war thinking, where the requirement called by such names as “legitimate authority” or “competent authority” is often demoted to an inferior place below just cause (so that, perhaps, the moralist gets to determine just cause) and functions as little more than part of a checklist or an item on a sign-off sheet.⁴ The conception of the responsibilities of sovereigns underlying the classic just war requirement of sovereign authority for the resort to armed force clearly extends beyond the mere fact of setting the use of force in motion to implications for how such force is used and its effects after its actual use has ended.

Similarly, the classic just war conception of just cause has fundamentally to do with establishing justice: restoring that which has wrongly been diminished or taken away and exacting punishment on those responsible for the wrongdoing.⁵ These are concerns that are not limited to the period when force is actually being used; the classic idea of just cause also points at the need to maintain the justice won by the use of force.

Finally, there is the matter of right intention, with its two faces. For the medieval writers on just war, the necessity of avoiding wrong intentions (defined in the list provided in Augustine’s Contra Faustum) has to do with maintaining personal morality: While the use of force itself is morally neutral, use of force with wrong intention puts one in a state of sin, and therefore after participation in battle warriors were required to confess any wrong intentionality they had had and do penance for it before being admitted back into the full sacramental life of the church.⁶ As Bernard Verkamp has cogently argued, this provided psychological as well as moral readjustment aimed at reintegrating those who had taken part in war back into postwar society.⁷ This remains an important element of concern for the nature of life after an armed conflict has ended. As for the second face of the classic just war requirement of right intention, the end of peace, the implications of requiring that peace be the fundamental driving purpose behind any just resort to armed force are far-reaching. Peace, as conceived here, is not simply the absence of war; it is a state of affairs interconnected with the establishment and maintenance of a just order, and the just use of force must aim at this end. Nor is this end simply the conclusion of the active use of force, as much contemporary opinion would have it; for medieval just war theorists the idea of end still had the meaning of the Greek telos, which referred to the desired fulfillment and completion of the process in question, and the process in the case of just war is the establishment of a peace characterized by order and justice. Augustine, on whom the medieval just war writers relied heavily, was unwilling to call the peace desired as the end of political efforts, including the just use of armed force, by the term pax; he reserved this conception of peace for the experience of rest in the City of God, for those fortunate enough to have received it by divine grace. But the term he used for the peace at which earthly political striving should aim, tranquillitas ordinis, has its own richness, referring to the tranquility that stands as the moral ideal for politics itself, and which comes into being only when there is a proper order—namely, one characterized by justice.⁸ Of course such order, justice, and peace can never be fully achieved; that is the message carried by the term tranquillitas instead of the term pax, which refers to an achieved end, the state realized only in the City of God. But that God offers this end as his gift does not mean that in the earthly life there is no moral responsibility to serve the ends available here, including those of the good society. That these good ends can never be fully achieved means that the obligation to strive for them is a continuing one. So again, classic just war thinking had to do with the use of armed force as a possible tool in the practice of politics, and this practice was always aimed at trying to get closer and closer to the ideal.

When we consider it closely, classic just war thought sets a high bar for a contemporary conception of responsibilities after an armed conflict. Just as the classic conception of just war includes both what came to be designated jus ad bellum and jus in bello, it also includes what is now being called jus post bellum.

A final remark on the matter of the relationship of just war thinking to the question of moral responsibility after an armed conflict has ended: a considerable strand in contemporary just war thinking begins with the idea that the use of armed force is itself always morally problematic; the most prominent example of this way of thinking is the US Catholic bishops’ placing a “presumption against war” at the beginning of their moral conception of war and everything connected to it.⁹ This is a dirty-hands conception of the morality of using armed force: The aim must be to avoid using such force, or, if it is being used as an unhappy exception in a given case, to end that use as soon as possible. I think that the classic just war theorists had a far better grasp of the morality of the use of force in relation to the realities of life in this world: that there is evildoing, that there are people who engage in it, and that sometimes the use of armed force is the only way to stop them, restrain them for the future, and perhaps punish them for what they have done in the past, as a way of providing what is too frequently today referred to as closure but is in fact simple distributive justice. To talk about responsibility after an armed conflict has been formally ended it is also necessary to talk about the possibility of the use of armed force in that aftermath, as an element in restoring the affected society to a bearable and sustainable level of stability, well-being, and the possibility of productive relationships among its members. What would Bosnia have been like after the Dayton agreements had there been no IFOR, and what would it be like today if there had not continued to be some military presence there to continue to protect the struggle to achieve peace? The dimensions of what may be required in any given case are inherently difficult to grasp, and this argues for flexibility in the use of force in whatever case is at hand. To take another example, it remains unclear whether the new Iraqi government will prove successful in satisfying its responsibilities, or whether the Iraqi armed forces will prove able to maintain the order necessary to turn back the forces aiming at destruction and chaos. In such a context, with the achievement of the desired goals still uncertain, there may remain a need for United States armed forces, and to think of our moral responsibility there simply in terms of getting all our forces out of Iraq entirely misses the point. One can reach this realization from several routes; my point here is that consideration of the implications of the classic idea of just war is among those routes.

The History of Thinking about, and Dealing with, the Aftermath of War

I have argued in the previous section that concern for what happens after an armed conflict has ended is already strong in classic just war thought. In the history between the formation of this conception of just war and our own time there have been other lines of development leading to similar conclusions, and there have also been developments leading in exactly the opposite way.

Let me first consider the practice of war. In the Middle Ages the nature of war was limited not only by the ideals of chivalry and the canonical rules of the church, but also by far more realistic constraints. It is certainly good to have moral prohibitions against direct, intended harm to non-combatants and creation of disproportionate destruction, but it was easier to honor such restraints when armies themselves were a relatively small part of the population as a whole and depended on that larger population as their economic base. War was a part-time affair, both because of the impossibility of campaigning during much of the year but also because the warriors needed to be at home to oversee their properties and seek to ensure their continuing productivity. Most of the time war was about disputes over property and the revenues generated from the disputed areas, and it was emphatically not in the interest of belligerents to employ scorched-earth tactics or to treat the population of the disputed areas badly, for after the war these would add to the political, economic, and military strength of the victor. The actual weapons employed during this period were difficult to use and, in the case of siege machines, arduous to transport. And so on. Concern for a positive state of affairs after a conflict was thus built into the system of warfare and of political and economic life as a whole.

The gradual growth of armies of common men, first supplementing and then displacing armies based on knights and their immediate retainers, did not fundamentally upset these realities about war. Nor did the introduction of firearms, for early firearms depended on the same pools of resources and labor that were needed for the weapons they displaced. The first genuine challenge to this way of war was the post-Reformation wars of religion, which equated struggles over territory with struggles over religious allegiance and introduced the practices of counterpopulation warfare and scorched-earth tactics. In the frame of religious motivation, what mattered most after the war was over was not the economic productivity of the land fought over or the lives of the people who lived there, but the establishment of right religious allegiance. The result was a kind of war with much more widespread and devastating impact on the people in the areas affected and, especially in northern Europe during the Thirty Years War, a level of destruction that not only wiped out large portions of the population but also rendered the land unproductive and all but uninhabitable. In reaction, the negotiations that mark the end of this century of conflict, the Peace of Westphalia at the end of the Thirty Years War, redefined the political order so as to attempt to bracket out the possibility of future wars over religious allegiance. In the following century and a half, the era of the so-called sovereigns’ wars, the practice of war once more took on the character it had had before the advent of religiously motivated wars, one which by its nature respected the well-being of areas and populations fought over after a conflict was concluded.

But then came the Napoleonic revolution in warfare, which introduced the idea of the nation in arms, including large national armies and a conception of civilian society as directly involved in supporting the armed struggle. Backing this up was a revolutionary ideology that functioned in the same way that religious adherence had functioned in the wars of the post-Reformation era. By the early nineteenth century the technology of war had already changed to make for more destructive capability, but as the century developed and the Industrial Revol...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Introduction
• 1. Moral Responsibility After Conflict
• 2. The Aftermath of War
• 3. Jus Ante and Post Bellum
• 4. In My Beginning is My End
• 5. A More Perfect Peace
• 6. Ethics in the Times of War
• 7. Just War and An Ethics of Responsibility
• 8. Ending the US Civil War Well
• 9. Justice After War
• 10. “Just Peace”
• Conclusion
• Contributors
• Index