Justice after War Brian Orend*

adly, t h ere are few re s traints on the importance, of ending wars in a full and fair end i n g s of wa rs . The re has never been f a s h i on . We know that wh en wars are an intern a ti onal trea t y to regu l a t e war’s wra pped up badly, t h ey sow the seeds for S 2 final ph a s e , and there are sharp disagree- future bloodshed. m ents rega rding the natu re of a just pe ace • To allow unconstrained war termination tre a ty. Th ere are , by con tra s t , re s tra i n t s is to allow the winner to enjoy the spoils of a p l en ty on starting wars , and on con du ct war.This is dangerously permissive, as win- dur ing war. These res t raints include : pol i t i- ners have been known to exact peace terms cal pre s su re from allies and en em i e s ; t h e that are draconian and vengeful. The Treaty lo gis t ics of raising and depl o ying force; th e of Vers a i ll e s , term i n a ting World War I, i s Un i ted Na ti on s , its Ch a rter and Sec u ri ty often mentioned in this connection.3 Co u n c i l ; and intern a ti onal laws like the • Failure to regulate war termination may Hague and Gene va Conventi on s . Ind eed, in prolong fighting on the ground. Since they just war theory— wh i c h frames moral prin - have few assurances regarding the nature of ciples to regu l a t e wartime action s — t h e re is a the set t l em en t , bell i gerents wi ll be sorely robust set of rules for res o rting to war (jus ad tem pted to keep using force to jockey for bellu m ) and for condu c t dur ing war (jus in position. Many observers felt that this reali- bello ) but not for the termi n a ti o n phase of ty plagued the Bosnian civil war, which saw wa r .1 Recent events in Afgha n i s t a n , and the m a ny failed nego ti a ti ons and a three - ye a r “war against terrori s m ,” vivi dly underl i n e “s l ow bu rn” of con ti nuous vi o l en ce as the the rele van c e of reflecting on this omi s s i on , very negotiations took place.4 and the comp l e x issues rela t ed to it. • All owing war term i n a ti on to be deter- The intern a ti onal com mu n i ty should mi n e d wit h o u t norma t ive res t raints leads to rem edy this gl a ring gap in our on goi n g in c ons i s t ency and conf u s i on . Fi rs t , ho w can s tru ggle to re s train warf a re . The fo ll owi n g we try to reg u l a te the first two phases of facts bear this out: war—the beginning and middle — y et not the • Recent armed conflicts—in the Persian end? Second , the lack of es t a bl i s h e d norms to Gu l f , Bo s n i a , R w a n d a , and Ko s ovo — gu i d e the cons t ruc tio n of pea ce trea t ies leads demonstrate the difficulty, and illustrate the to patchwork “s o luti on s ,” m ere ad hoc

* Thanks to the editors of Ethics & International Affairs, bl ed ay, 1 9 9 2) ; D avid Ri ef f , Sla u gh t erhou s e: Bosnia and e s pec i a lly Ch ri s tian Ba rry. Th a n k s , too, to Mi ch ael the Failure of the West (New York: Simon and Schuster, Wa l zer and some anonymous revi ewers who com- 1995); Gerard Prunier, The Rwanda Crisis: History of a mented on an earlier draft. Genocide (New York: Columbia University Press, 1995); 1 On just war theory in general,see Michael Walzer, Just and Brian Oren d , “Crisis in Ko s ovo : A Just Use of and Unjust Wars, 3rd ed.(New York: Basic Books,2000); Force?” Politics 19, no. 3 (1999), pp. 125-30. and Brian Oren d , Mi ch a el Wa l zer on War and Ju s ti ce 3 Man f r ed F.Boem e ke ,G erald D. Feld m a n , and Elisabeth (Cardiff: University of Wales, 2000). Gl a s e r, eds . , The Trea t y of Versa i l les: A Rea s se s s m e nt after 2 David E. Decosse, ed., But Was It Just? Reflections on 75 Yea r s (Ca m b rid ge : Cam b rid g e Uni versi t y Pres s , 19 9 8 ). the Morality of the Persian Gulf War (New York: Dou- 4 Rieff, Slaughterhouse.

43 ar ran g eme nts that may not meet well- c on- ti onal arm ed con f l i cts invo lving com p l ex si d ered standards of prud enc e and jus ti ce . m i x tu res of s t a te and non s t a te actors . For Pe ace tre a ties should sti ll , of co u rs e , i n s t a n ce , I bel i eve the fort h coming pri n c i- remain tightly tailored to the historical real- ples are as meaningful for the current “war i ties of the particular con f l i ct in qu e s ti on . a gainst terrori s m” as they were for Worl d But admitting this is not to concede that the War II. Next,the set of postwar principles is s e a rch for gen eral guidel i n e s , or univers a l being of fered as guidance to those parti c i- s t a n d a rd s , is futile or naïve . Th ere is no pants who want to end their wars in a fair, inconsistency, or mystery, in holding partic- ju s ti f i ed way. Not all participants do, of ular actors in complex local conflicts up to course, and to the extent they fail to do so, m ore gen era l , even universal standards of t h ey act unju s t ly du ring the term i n a ti on con du ct . Ju d ges and ju ries do that daily, phase. A related assumption is that there is evaluating the factual complexities of a given no su ch thing as “ vi ctor ’s jus ti ce . ” The raw case in light of gene ral prin c i p l e s . We should f act of m i l i t a ry vi ctory in war does not of do the same regar ding war termi n a ti on . i t s el f con fer moral ri ghts upon the vi ctor, This artic le wil l cons i d er what partic i p a n t s n or duties upon the va n qu i s h ed . In my should do as they move to wrap up a war. It ju d gm en t , it is on ly wh en the vi ctori o u s wi ll do so while drawing on the re s o u rce s regime has fought a just and lawful war, as cont a i n e d within the just war trad i ti on ,p a r- def i n ed by intern a ti onal law and just war ti c u l a rly its reworking of fered by Mi ch ael t h eory, that we can speak meaningf u lly of Wal z er.5 Sin c e just war theory has played a ri ghts and duti e s , of both vi ctor and va n- cons t ruc tive role thus far in its influen c e on qui s h ed , at the conc lus i o n of arm e d confli ct . 6 po l i tical and legal disco u rse con cern i n g Such a just and lawful war is defined by la u n c hing and carrying out war, th e re is rea - just war theorists as one that was begun for so n to beli e ve it has light to shed on war ter- the right reasons, and that has been fought mi n a ti on . My goal is to cons t ruc t a gene ral set appropriately. The resort to war was just (jus of pl a u s i b le principles to guide commu n i ti e s ad bellum), and only the right methods were se eking to res o l ve their arme d confli c ts fairly. u s ed du ring the war (jus in bell o ). A war begun for the right reasons is a war fought in THE ENDS OF A JUST WA R 5 This is not to deny the importance of the robust con- flict-resolution literature. Much of that literature is rel- The first step is to answer the question: What evant to the pre s ent con cern , but not mu ch of it is may a participant rightly aim for with regard located within the explicitly ethical values and commit- to a just war? What are the goals to be ments of just war theory,whereas this piece is.For more on con fli ct re s o luti on in gen era l , s ee Steph en J. Ci m- ach i eved by the set t l em ent of the con f l i ct ? bala, ed., Strategic War Termination (New York: Praeger, We need some starting assumptions to focus 1986); Paul R.Pillar, Negotiating Peace: War Termination our thoughts on these issues.First,this arti- as a Bargaining Process (Princeton: Princeton Universi- cle will consider classical cases of interstate ty Press, 1983);Stuart Albert and Edward Luck, eds., On the Endings of Wars (Port Washington, N.Y.: Kennikat armed conflict to provide a quicker, cleaner Pre s s , 1 9 8 0) ; A . J. P. Tayl or, How Wa rs En d ( Lon don : route to the general set of postwar principles Ha m i l ton , 1 9 85) ; and Fen Osler Ha m p s on , Nu rtu ri n g sought after. I hope to show that the result- Peace: Why Peace Settlements Succeed or Fail (Washing- ton, D.C.: U.S. Institute of Peace, 1996). ing set can then be app l i ed more broadly, 6 Adam Roberts and Rich a r d Guel f f , eds . , Doc u m e nts on not only to civil wars but also to unconven- the Laws of War ( Ox ford: Oxf ord Uni versi t y Pres s , 19 9 9 ).

44 Brian Orend response to aggression, defined by Walzer as to ree s t a blish the state of a f f a i rs that “any use of force or imminent threat of force obtained before the war broke out. Restore by one state against the political sovereignty the equilibrium disturbed by the aggressor, or terri torial integri ty of a n o t h er.”7 Su ch traditionalists advise. As Walzer points out, s t a te ri ghts are them s elves fo u n ded , u l ti- h owever, this asserti on makes little sen s e : mately, upon individual human rights to life one ought not to aim for the literal restora- and liberty. The most obvious example of an tion of the status quo ante bellum because act of international aggression would be an that situation was precisely what led to war armed invasion by one state bent on taking in the first place . Al s o, given the sheer over another, much as Iraq did to Kuwait in de s tru ctiveness of w a r, a ny su ch litera l August 1 9 9 0. But this requ i rem ent of ju s t re s tora ti on is em p i ri c a lly impo s s i bl e . Wa r cause,in terms of resisting aggression,is not simply changes too much.So the just goal of the on ly rule just war theorists insist on a just war, once won, must be a more secure prior to beginning war.They also stipulate and more just state of a f f a i rs than ex i s ted that the war in question be launched as a last pri or to the war. This con d i ti on Wa l zer re s ort , be publ i cly decl a red by a proper refers to as one of “restoration plus.”10 What authority, have some probability of success, might such a condition be? be animated by the rig ht intenti o n of res i s t - The gen eral answer is a m o re se c u re po s- ing aggres s i on , and also be exp ected to pro- session of our ri gh t s, both indivi dual and duc e at least a proportion a l i t y of bene fits to co ll ective . The aim of a just and lawful war cos t s . These gene ral norms have worked their is the re s i s t a n ce of a ggre s s i on and the vi n- wa y into var ious pieces of in t erna ti o nal law.8 d i c a ti on of the fundamental ri ghts of A war begun ju s t ly must also be fo u gh t po l i tical com mu n i ti e s , u l ti m a tely on a ppropri a tely. For just war theori s t s , t h i s beh a l f of the human ri ghts of t h eir indi- means that a state’s arm ed forces obey at vi dual citi zen s . The overa ll aim is, in Wa l z- least three rules of right conduct: they must er ’s word s , “to re a f f i rm our own deepe s t discriminate between combatant (military) va lu e s” with rega rd to ju s ti ce , both dom e s- and non combatant (civilian) targets and tic and intern a ti on a l . It is not implausibl e direct their armed force only at the former; to fo ll ow John Rawls in claiming that, i n t h ey may attack legi ti m a te military target s our era , no deeper, or more basic, po l i ti c a l only with proportionate force; and they are va lues exist than those human ri ghts that not to em p l oy met h ods wh i ch , in Wa l zer ’s ju s tify a re a s on a ble set of s ocial insti tu- word s , “s h ock the moral con s c i en ce of mankind.”Examples of such heinous meth- 7 Walzer, Just and Unjust Wars, p. 62. ods include the deployment of weapons of 8 For more on jus ad bellum, see Walzer, Just and Unjust Wars, pp. 3-33 and 51-125; and David Luban,“Just War mass destruction, and the use of mass rape and Human Ri gh t s ,” Ph i l o sop hy and Pu blic Af f a i rs 9 c a m p a i gns as instru m ents of w a r.Th e s e (1980), pp. 160-81. On law, see Roberts and Guelff, eds., principles of jus in bello, alongside those of Documents on the Laws of War. 9 jus ad bellum, offer a coherent set of plausi- For more on jus in bello, see Walzer, Just and Unjust Wars, pp. 34-50 and 127-224 (quote at p. 107); Thomas ble va lues to draw on while devel oping an Na gel , “War and Ma s s ac re ,” Ph i l o sop hy and Pu bl i c account of just war settlement.9 Affairs 1 (1972), pp. 123-45; Robert K.Fullinwinder,“War It is often contended that the just goal of and Innocence,” Philosophy and Public Affairs 5 (1975), pp. 90-97; and Geoffrey Best, War and Law Since 1945 a just war is the proverbial status quo ante (Oxford: Oxford University Press, 1994). bellum: the victorious regime ought simply 10 Walzer, Just and Unjust Wars, pp. xx, 119.

Ju sti ce after Wa r 45 ti ons and ulti m a tely en a ble a sati s f yi n g impose outside constraints on what can be po l i tical ex i s ten ce .1 1 done to an aggre s s or fo ll owing its defe a t . From this gene ral prin c i p l e , that the prop- This line of reasoning might spark resistance er aim of a just war is the vin d i c a ti o n of th o s e f rom those who vi ew favora bly the All i ed rig hts whose vio l a ti o n grou n d ed the res o rt to insistence on unconditional surrender dur- war in the first place ,m ore deta i l e d comm e n- ing the closing days of World War II. But we ta r y needs to be off ered. For what does suc h n eed to distinguish here bet ween rh etori c “vi n d i c a ti o n” of rig hts amount to: what does and reality. The policy of unconditional sur- it include ; what does it permi t ; and what does ren der fo ll owed by the Allies was not gen- it forbid? The last aspect of the qu e s ti on u i n ely uncon d i ti on a l ; t h ere was never any se ems the easiest to answer,at least in abstract insistence that the Allies be able to do what- term s : The principle of ri ghts vi n d i c a ti on ever they wanted with the defeated nations. forbids the conti nu a ti o n of the war after the Churchill himself,for example,said: “We are rele vant rig hts have, in fact, been vin d i c a t ed. bound by our own con s c i en ces to civi l i z a- To go beyond that limit would itself become ti on . [ We are not] en ti t l ed to beh ave in a ag gre s s i on :m en and wome n would die for no barbarous manner.”12 At the very most, the just cause. This bedr ock limit to the jus ti fi ed policy the Allies pursu ed was genu i n ely conti nu a n c e of a just war seems requi r ed in u n con d i ti onal vi s - à - vis the govern i n g order to prevent the war from spilling over regimes of the Axis powers, but not vis-à-vis i n to som ething like a cru s ade , wh i ch the civilian populations in those nations. demands the utt er des t ruc tio n of the demo - Such a discriminating policy on surren- ni z ed ene my. The very essenc e of jus ti c e of, der may be defen s i ble in ex treme cases, i n , and after war is abo ut there being firm i nvo lving tru ly abhorrent regi m e s , but is l i m i t s , and con s tra i n t s , u pon its aims and gen era lly imperm i s s i bl e . For insisten ce on con du ct . Un con s tra i n ed figh ti n g, with its u n con d i ti onal su rren der is disproporti on- fea r ful pros p ect of degene rat ing into barba r - ate and will prolong fighting as the defeated it y, is the worst-case scena ri o — r egar dless of aggressor refuses to cave in, fearing the con- the val ues for whi c h the war is being fou gh t . s equ en ces of doing so. Wa l zer bel i eves this This em phasis on the mainten a n ce of was the case during the Pacific War, owing to limits in wartime has the important conse- Am eri c a’s insisten ce on Ja p a n’s uncon d i- quence that there can be no such thing as a tional surrender. It is thus the responsibility morally mandated unconditional surrender. of the victor to communicate clearly to the This is so because,as Walzer observes, “con- losing aggre s s or its sincere inten ti ons for d i ti ons inhere in the very idea of i n tern a- postwar settlement, intentions that must be ti onal rel a ti on s , as they do in the idea of consistent with the other principles of post- human relations.”The principles vindicated war justice here developed.13 su cce s s f u lly by the just state them s elve s What does the just aim of a just war— namely, rights vindication, constrained by a 1 1 Wa l zer, Just and Unjust Wa rs, pp. 1 1 0, 1 1 7, 1 2 3;Jo h n proporti on a te policy on su rren der — pre- Rawls,“The Law of Peoples,”in Steven Shute and Susan c i s ely inclu de or mandate? The fo ll owi n g Hurley, eds., On Human Rights (New York: Basic Books, seems to be a plausible list of propositions 1993), pp. 40-80. 12 Chur chi l l quo t ed in Wal z er, Just and Unjust War s, p.11 2 . regarding what would be at least permissible 13 Walzer, Just and Unjust Wars, pp. 113, 263-68. with regard to a just settlement of a just war:

46 Brian Orend • The aggre s s i on need s , wh ere po s s i bl e the rehabilitation and therapy required after and proportional, to be rolled back, which is the surgery, in order to ensure that the orig- to say that the unjust gains from aggression inal inten t — n a m ely, defe a ting the thre a t must be el i m i n a ted . If , to take a simple and pro tecting the ri ghts—is ef fectively example,the aggression has involved invad- s ec u red and that the pati ent is materi a lly ing and taking over a co u n try, t h en jus ti c e bet ter of f than before the exerc i s e . Th e requires that the invader be driven out of the “patient” in this case is,in the first instance, co u n try and sec u re borders ree s t a bl i s h ed . the victim(s) of aggression. Secondarily, the The equally crucial corollary to this princi- term refers to the international community ple is that the victim of the aggression is to gen era lly — i n cluding even the aggre s s or ( s ) be reestablished as an independent political or at least the lon g - term interests of t h e com mu n i ty, en j oying po l i tical soverei gn ty civilians in aggressor(s).15 and territorial integrity. Su f f i c i ent com m ent has alre ady been • The commission of aggression,as a seri- of fered on what the first propo s i ti on ous intern a ti onal cri m e , requ i res punish- requires and why: aggression,as a crime that m ent in two form s : com pen s a ti on to the ju s tifies war, n eeds to be ro ll ed back and victim for at least some of the costs incurred have its gains eliminated as far as is possible du ring the fight for its ri gh t s ; and war and proportional; and the victim of aggres- crimes trials for the initiators of aggression. s i on needs to have the obj ects of its ri gh t s I will later argue that these are not the only re s tored . This principle seems qu i te war crimes trials required by justice in war’s s tra i gh tforw a rd , one of ju s ti ce as recti fic a- aftermath. tion. But what about compensation, “politi- • The aggre s s or state might also requ i re cal rehabilitation,” and war crimes trials? so me demi l i t a ri z a ti o n and pol i t ical reha bi l i - ta ti on , depending on the natur e and severit y C O M P E N S ATION AND of the aggres s i o n it comm i t t ed and the threa t it would conti n ue to pose in the absenc e of D I S C R I M I N AT I O N su ch measu re s . “One can,” Wa l zer avers , Si n ce aggre s s i on is a crime that vi o l a te s “le giti m a t ely aim not merely at a suc ces s f u l im p ortant rig hts and causes muc h damage ,i t res i s t a n c e but also at some rea s on a b le secu - is re a s on a ble to con tend that, in a cl a s s i c a l rit y against futur e attack. ”14 The que s ti o n of con text of i n ters t a te war, the aggre s s or forc i bl e , forw a rd - l ooking reh a bi l i t a ti on is na ti on , “Aggres s o r,” owes some duty of com- one of the most cont roversial and interes ti n g pen s a ti on to the vi ctim of the aggre s s i on , sur rounding the jus ti c e of set t l em en t s . “Vi cti m .” This is the case bec a u s e , in the Metaphorically, one might say that a just ab s en c e of ag gres s i on , Vic tim would not have war, justly prosecuted,is something like rad- to recon s tru ct itsel f fo ll owing the war, n or ical surgery: an extreme yet necessary meas- u re to be taken in defense of f u n d a m en t a l 14 Walzer, Just and Unjust Wars, p. 118. va lu e s , l i ke human ri gh t s , a gainst seri o u s , 15 This image of just war as radical surgery, and just set- l ethal threats to them , su ch as vi o l en t tlement as the subsequent therapy, came to mind while aggression. And if just war, justly prosecut- reading Nissan Oren,“Prudence in Victory,” in Nissan Oren, ed., Termination of War: Processes, Procedures and ed, is like radical surgery, then the justified Aftermaths (Jerusalem: Hebrew University Press, 1982), conclusion to such a war can only be akin to pp. 147-64.

Ju sti ce after Wa r 47 would it have had to fight for its rig hts in the era ti ons of d i s c ri m i n a ti on with rega rd to first place, with all the death and des t ruc tio n an s w ering the “fr om who m”que s ti on : When that implies. Wa l zer says that the deepe s t it comes to establishing terms of compensa- na tu r e of the wrong an aggres s o r commits is tion,care needs to be taken by the victorious to make people fight for their righ t s , that is, Vi cti m , a n d / or any third - p a rty “Vi n d i c a- ma k e them res o rt to vio l en c e to secu r e those tors” who fought on behalf of Victim,not to th i n g s to whi c h they have an elem e ntal ent i- pen a l i ze undu ly the civilian pop u l a ti on of t l em en t , and wh i ch they should en j oy as a Aggressor for the aggression carried out by m a t ter of co u rs e . To put the issue blu n t ly, their regime. This entails, for example, that Aggre s s or has cost Vi ctim a con s i dera bl e any monetary compensation due to Victim a m o u n t , and so at least some re s ti tuti on is ought to come, first and foremost, from the du e . The cri tical qu e s ti ons are how mu ch personal wealth of those political and mili- comp ens a ti on , and by who m in Aggres s o r is t a ry el i tes in Aggre s s or who were most the comp ens a ti o n to be paid out? re s pon s i ble for the crime of a ggre s s i on . The “how much” question, clearly, will be Walzer seems to disagree when he suggests relative to the nature and severity of the act that such a discriminating policy on repara- of aggression itself,alongside considerations tions “can hardly” raise the needed amount. of what Aggressor can reasonably be expect- But he ign ores the fact that, h i s tori c a lly, ed to pay. Ca re needs to be taken not to those who launch aggressive war externally b a n k ru pt Aggre s s or ’s re s o u rce s , i f on ly for have very often abused their power internal- the re a s on that the civilians of Aggre s s or ly to accumulate personal fortunes. In light still, as always, retain their claims to human of this su ppo s ed shortf a ll , Wa l zer argues ri ghts fulfill m en t , and the obj ects of su ch t h a t , s i n ce “rep a ra ti ons are su rely due the ri ghts requ i re that re s o u rces be devo ted to vi ctims of a ggre s s ive war,” t h ey should be them.16 There needs,in short, to be an appli- paid from the taxation system of the defeat- c a ti on of the principle of proporti on a l i ty ed Aggre s s or. Th ere ought to be a kind of h ere . The com pen s a ti on requ i red may not postwar po ll tax on the pop u l a ti on of be draconian in nature. We have some indi- Aggre s s or, with the proceeds forw a rded to cation,from the financial terms imposed on Victim. In this sense, he says, “citizenship is Germany at the Treaty of Versailles, that to a common destiny.”18 I believe,however, that beggar thy neighbor is to pick future fights.17 this fails to respect the discrimination prin- This reference to the needs of the civilians ciple during war termination. Though Walz- in Aggressor gives rise to important consid- er insists that “the distribution of costs is not the distribution of guilt,” it is difficult to see

16 James Nickel, Making Sense of Human Rights (Berke- what that is su ppo s ed to mean here : Why ley: University of California Press, 1987). not respond by asking why civilians should 17 Boeme ke , Feld m a n , and Glaser,eds . , The Trea t y ofVersa i ll e s . be forced , th ro u g h their tax sys tem , to pay 18 One of my reviewers concurred with Walzer, drawing for the damage if they are not in some sense on the analogy of s h a reh o l ders being co ll ectively re s pon s i bl e , at least in financial term s , for corpora te re s pon s i ble for it? Re s pect for discri m i n a- wrongdoing even when such was committed by man- ti on entails taking a re a s on a ble amount of a gem ent on ly. But I’m not su re that analogy holds: compensation only from those sources that shareholders lose money they risked voluntarily in pur- suit of capital gains, whereas citizenship is less volun- can afford it and that were materially linked tary and far weightier. to the aggression in a morally culpable way.

48 Brian Orend If suc h repa ra ti o ns “can hardly” pa y for the ing commu n i t y of th o u g ht that comm en d s des t ruc tio n Aggres s o r meted out on Vic tim , i n s te ad sancti ons that target el i te s , for th e n that fiscal defici e ncy does not someh o w in s t a n c e by freezing perso nal assets , blo cki n g tran s l a t e into Vic tim ’s moral enti t l em e nt to tax we a pons trade , and banning forei gn trav- everyone in Aggres s o r.The res o u r ces for recon- el. 20 The assets of so me orga n i z a ti o ns alle ged st ruc tio n simply have to be found els e whe re. 19 to be invol ved in terrorism have been frozen An app l i c a ti on to recent events can be si n c e 9-11 ; it wil l be interes t ing to see whet h e r seen through consideration of the following fu rt h e r sanctio ns in the war against terror- qu e s ti on : Should the Un i ted States levy a ism wi ll be app l i ed , for instance , to en ti re postwar po ll tax on the citi zens of cou n t ri e s ,a n d ,i f so , what kind. Afghanistan to increase the funds available to compensate and care for those who lost R E H A B I L I TAT I O N loved ones during the 9-11 strikes, or else to rebuild New York’s financial distri ct? Th e The notion under this heading is that,in the principles just devel oped would seem to postwar envi ron m en t , Aggre s s or may be argue against such a tax,as there is a serious required to demilitarize,at least to the extent question of affordability in Afghanistan and that it will not pose a serious threat to Vic- an even sharper one regarding responsibili- tim—and other mem bers of the intern a- ty, as the available evidence points to a col- ti onal com mu n i ty — for the fore s ee a bl e lu s i on bet ween the now - ro uted Ta l i b a n f utu re . The appropri a te el em ents of su ch regime and the al-Qaeda net work as the dem i l i t a ri z a ti on wi ll cl e a rly va ry with the s o u rce of the attack s . Com m en d a bly, t h ere nature and severity of the act of aggression, has been little talk of a ny su ch punitive along with the extent of Aggressor’s residual m e a su re on Afgh a n i s t a n , and Am eri c a n s military capabilities following its defeat. But h ave inste ad tu rn ed tow a rd each other to they may, and often do, involve:the creation raise the needed recon s tru cti on re s o u rce s . of a dem i l i t a ri zed “bu f fer zon e” bet ween In deed , it is Afgh a n i s t a n’s interim govern- Aggressor and Victim (and any Vindicator), ment that has formally requested American whether it be on land,sea or air; the capping re s o u rces to help rebuild its bro ken soc i a l of certain aspects of Aggre s s or ’s military and physical infrastructure. capability; and especially the destruction of A furt h er implicati on of re s pect for dis- Aggre s s or ’s we a pons of mass de s tru cti on . cri m i n a ti o n in sett l em e nts is a ban on sweep- O n ce more , proporti on a l i ty must be ing soci o econo mic sanction s . The rea s on i n g brought to bear upon this general principle: is cle a r :San c tio ns that cut wid ely and deepl y The regime in Aggre s s or may not be so in t o the well- b eing of the civilian popu l a ti o n a re not on ly punitive , t h ey su rely end up punishing some who do not de s erve su ch 19 Walzer, Just and Unjust Wars, p. 297. trea tm en t . Suc h sanctio ns are properly con- 20 SeeRam s e y Cla rk , The Children are Dying: The Impa c t dem n ed as inappropri a tely targeted and of S a n ctions on Ira q ( New York : World Vi ew Foru m , 1 9 9 6) ; An t h ony Arn ove and Ali Abu n i m a h , ed s . , Ira q mo ral ly wron gh e aded. Great cont roversy , of Un d er Si ege: The De a dly Im pa ct of S a n ctions and Wa r co u rs e , su rrounds the issue of wh et h er (L ond on: Sou th End Pres s , 20 0 0 ); Alb ert Pierce ,“ Ju s t Am eri c a n - l ed sancti ons on Ira q , fo ll owi n g War Principles and Econo mic San c tion s , ”Eth i c s & Int er- na t ional Aff a i r s 10 (19 9 6 ), pp. 99 -11 3; and the mul ti - e s s a y the Persian Gul f War , count as suc h sanction s excha n g e on the issue betw een Joy Gordon and Georg e or not. The re is a vocal and appa r ent l y grow- Lopez , Eth i c s & Int erna t ional Aff a i r s 13 (19 9 9 ), pp. 12 3 -50.

Ju sti ce after Wa r 49 dem i l i t a ri zed as to jeop a rd i ze its abi l i ty to of providing dom e s tic law and order, f u l f i ll its functi on of maintaining law and human rights fulfillment, and adherence to order within its own borders , and of pro- the basic norms of i n tern a ti onal law, tecting its people from other countries who notably those banning aggression. The reha- might be tempted to invade if they perceive bi l i t a ti ons of the governing stru ctu res of serious weakness in Aggressor. Another way both West Germ a ny and Japan fo ll owi n g this requirement could be met would be for World War II, largely by the United States, the victors to provide reliable security guar- seem quite stellar and instructive examples antees to the people of Aggressor. in this regard.22 They also illustrate the pro- The impo s i ti on of s ome su b s t a n ti a l found and costly commitments that must be requ i rem ent of po l i tical reh a bi l i t a ti on borne by any Victim or Vindicator seeking seems the most serious and invasive meas- to impose such far-reaching and consequen- u re perm i t ted a just regi m e , fo ll owing its tial terms on the relevant Aggressor follow- ju s ti f i ed vi ctory over Aggre s s or. As Wa l zer ing defeat. asserts,the “outer limit” of any surrender by One open question concerns whether we Aggressor to Victim, and any Vindicator, is “prob a bly ” should agree with Wa l zer that the construction and maintenance of a new rehabilitation be reserved only for the most kind of dom e s tic po l i tical regime wi t h i n grave cases of a ggre s s i on , l i ke Nazi Ger- Aggressor, one more peaceable, orderly, and m a ny. Why shouldn’t we impose at least pro–human rights in nature. It is probably some rehabilitative measures on any aggres- correct to agree with him,however, when he sor? Given the serious nature of any act of cautions that,as a matter of proportionality, a ggre s s i on—so serious that, by Wa l zer ’s such measures are in order only in the most own lights, it justifies war—why should we extreme cases, such as Nazi Germany at the refrain from imposing political reform upon close of World War II.21 the defeated aggressor, unless its regime is as If the actions of Aggressor during the war bad as that of the Nazis? After all,the imme- were truly atrocious, or if the nature of the diate postwar environment would seem the regime in Aggressor at the end of the war is perfect opportunity to pursue such reform, still so heinous that its continued existence and pre su m a bly it would con tri bute to a poses a serious threat to international justice more peaceful world order in the long run. and human ri gh t s , t h en—and on ly then — The German and Japanese examples might m ay su ch a regime be forc i bly dismantled even be cited as evi den ce in favor of t h i s . and a new, m ore defen s i ble regime estab- Some cited such cases in 1991, while arguing lished in its stead.But we should be quick to that the allies in the Gulf War should have note,and emphasize,that such construction n ece s s i t a tes an ad d i ti onal com m i tm ent on 21 Walzer, Just and Unjust Wars, pp. 113, 119, 267-68. the part of Vi ctim and any Vi n d i c a tors to 22 Leon V. Sigal, Fighting to the Finish: The Politics of assist the new regime in Aggressor with this War Term i n a tion in the Un i ted St a tes and Ja pa n , 1 94 5 en ormous task of po l i tical re s tru ctu ri n g. ( It h ac a : Corn ell Un ivers i ty Pre s s , 1 9 8 9) ; How a rd B. S ch on ber ger, Af termath of Wa r: Am ericans and the This assistance would be composed of see- Remaking of Japan, 1945-1952 (Ohio: Kent State Univer- ing such“political therapy”through to a rea- sity Press, 1989); Michael Schaller, The American Occu- sonably successful conclusion—which is to pation of Japan (Oxford: Oxford University Press, 1987); and Eugene Davidson, The Death and Life of Germany: s ay, u n til the new regime can stand on its An Account of the American Occupation (St. Louis: Uni- own, as it were,and fulfill its core functions versity of Missouri Press, 1999).

50 Brian Orend moved on to change the regime in Iraq, and t h eory, l e aving some of the stri ctu res of not “m erely ” to have pushed it out of s overei gn ty behind in favor of a u gm en ti n g Kuw a i t . The re a s on Wa l zer hesitates to ad h eren ce to intern a ti onal va lu e s .24 affirm this more expansive view on forcible It is interesting to reflect on Afghanistan reh a bi l i t a ti on is because of the great valu e in connection with these issues.A more rep- he attaches to political sovereignty,to shared re s en t a tive interim govern m ent has been ways of life, and to free collective choice— formed in the Taliban’s wake, and there has even if these end up failing to ex press the been talk of partially secularizing and mod- degree of domestic human rights fulfillment ernizing the education system, for instance that we in We s tern liberal dem oc rac i e s by permitting the participation of girls and might prefer. He cautions against “the terri- women. Foreign peacekeepers, though, cur- ble pre su m pti on” behind ex ternal powers’ rently serve as the effective enforcers of law deliberately changing domestic social insti- and order, external humanitarian aid is still tutions, even in aggressors.23 needed simply to feed people, and much of My ju d gm ent is that Wa l zer ’s cauti on the co u n try ’s infra s tru ctu re has been h ere may be too cauti o u s , and that his relu c- ruined—by conflicts that started well before t a n ce to permit insti tuti onal re s tru ctu ri n g the U.S.-led campaign. Moreover, the exact m ay reveal the limitati ons of his stron g details rega rding the move from a merely com m i tm ent to nati onal soverei gn ty. I su g- “interim” government to a more stable sys- gest that there should be a pre su m pti on i n tem have yet to be clarified,and the support f avor of perm i t ting reh a bi l i t a tive measu re s i n of s ome important com munal leaders in the dom e s tic po l i tical stru ctu re of a defe a t- parts of the country has yet to be secured. ed aggre s s or. But su ch reh a bi l i t a ti on doe s We should also expect, to return to reha- n eed to be proporti onal to the degree of bi l i t a ti on in gen era l , a formal apo l ogy by depravi ty inherent in the po l i tical stru ctu re Aggressor to Victim and any Vindicator for i t s el f . This way, com p l ete dismantling and its aggression. While it is right to agree with con s ti tuti onal recon s tru cti on — l i ke the sea Wa l zer that “official apo l ogies som eh ow ch a n ge from to t a l i t a rian fascism to libera l s eem an inadequ a te , perhaps even a per- dem oc rac y — wi ll prob a bly be re s erved for f u n ctory, way ” of a toning for aggre s s i on ,25 excepti onal cases similar to those Wa l zer this is no reason to rule such an apology out c i te s . But com p a ra tively minor ren ova- of the terms of the peace. For even though ti on s — l i ke human ri ghts edu c a ti on pro- formal apo l ogies cannot of t h em s elve s gra m s , po l i ce and military retra i n i n g restore territory, revive casualties, or rebuild progra m s , reform of the ju d i c i a ry and bu re a u c racy into acco u n t a ble insti tuti on s , 23 Walzer, Just and Unjust Wars, pp. xvii-xx. 24 ex ternal veri fic a ti on of su b s equ ent el ecti on On Bosnia,see Rieff, Slaughterhouse; and the text of the Dayton Peace Agreement itself,at www.state.gov/ re su l t s , and the like — a re perm i t ted in a ny w w w / regi on s / eu r / bo s n i a / bo s a gree . h tm l , wh i ch en ded defe a ted aggre s s or, su bj ect to need and pro- the war in Novemb er 19 9 5 .See also the text of the Ahti s a a r i porti on a l i ty. It is wort hy of n o ti ce that Accord,at www.nato/int/usa/policy/d990609.htm, Ser- bia’s initial agreement in May 1999 to NATO’s terms on m a ny of the most recent pe ace tre a ti e s — ending its armed intervention in favor of the Kosovars. l i ke that ending the Bosnian civil war—have Also relevant is Alcira Kreimer et al., Bosnia and Herze- i n clu ded this more perm i s s ive principle in govina: Post-Conflict Reconstruction (Washington, D.C.: World Bank, 2000);and Ruti G. Teitel, Transitional Jus- f avor of po l i tical reh a bi l i t a ti on . Po l i ti c a l tice (Oxford: Oxford University Press, 2000). activi ty here seems to be outp acing po l i ti c a l 25 Walzer, “Untitled,” Dissent (1995), p. 330.

Ju sti ce after Wa r 51 infrastructure,they do mean something real m ents to law and order, and basic hu m a n to us. If not, why do formal apologies, and ri gh t s . In terms of war figh ti n g, h avi n g victims’ campaigns to secure such apologies, reh a bi l i t a ti on as a war end does not som e- gen era te con s i dera ble po l i tical and med i a h ow diminish the re s pon s i bi l i ty to fight in a t ten ti on? If n o t , why do inform ed peop l e accord with the jus in bell o rules of ri gh t know that Germany has apologized profuse- con du ct . The import a n ce of the end doe s ly for its role in World War II whereas Japan not lessen the con s traints just com mu n i ti e s has hardly apo l ogi zed at all? Wa l zer mu s t f ace wh en they vi n d i c a te their ri ghts by concede that we expect wrongdoers eventu- force . Wi ll insisten ce on reh a bi l i t a ti on as a lly to admit their wron gdoing and to p a rt of war set t l em ent itsel f pro l ong the express their regret for it . We feel that vic tim s f i gh ting? While it might do so as a matter of of wrong doing are owed that kind of res p ect f act , rel a tive to a less stri n gent or unju s t and that aggres s o rs must at least show recog- s et t l em ent of fer, s eeing it thro u gh is not ni ti o n of the moral principles they vio l a t ed. wrong provi d ed the figh ting con ti nues to Apol o gies are a nont rivial aspect of a com- re s pect jus in bell o. The duty falls on pl e te pea ce trea t y.26 Aggre s s or to agree to re a s on a ble terms of This pers pective on reh a bi l i t a ti on — c a ll- reh a bi l i t a ti on , not on Vi cti m / Vi n d i c a tor to ing for disarm a m en t , i n s ti tuti onal reform , avoid seeking those means nece s s a ry to po l i tical tra n s form a ti on , i n f ra s tru ctu re s ec u re ad h eren ce to them . i nve s tm en t s , and official apo l ogi e s — bri n gs It is an implication of this discussion that i n to focus important qu e s ti on s . Does it fo l- the three sets of just war principles—of, in, l ow from the above that the impo s i ti on of and after war—must not be applied sequen- reh a bi l i t a ti on on an aggre s s or is itsel f a ti a lly as each phase arises but , ra t h er, con- l egi ti m a te war aim? Can a just state set out , sidered together right from the start. There f rom the start of the war, not on ly to vi n d i- n eeds to be a con s i s tent com m i tm ent that c a te its vi o l a ted ri ghts but , in ad d i ti on , to en com p a s s e s , f rom the out s et , a ll three i m pose insti tuti onal thera py upon the s t a ges of a military en ga gem en t . Po ten ti a l a ggre s s or? If s o, what does that imply in p a rticipants in arm ed confli c t should con- terms of the use of force du ri n g w a r, s i n ce sider in advance whether it is likely that the being in a po s i ti on to impose insti tuti on a l requ i rem ents of a ll three sets of just war t h era py after the war is at least linked to, principles can be satisfied prior to engaging and may even depend on , the ach i evem en t in political violence.28 of a certain degree of m i l i t a ry su peri ori ty at w a r ’s end? The thera py requ i res the WAR CRIMES TRIALS s trength to see it thro u gh .2 7 My sense is that the impo s i ti on of i n s ti tuti onal thera py on This leaves the vexed topic of war crimes tri- an aggre s s or is con s i s tent wi t h , even als, perhaps the one issue of justice after war i m p l i ed by, the overa ll goal of a ju s ti f i ed that has alre ady received searching atten- war argued for previ o u s ly, n a m ely, ri gh t s tion. The normative need for such trials fol- vi n d i c a ti on con s tra i n ed by a proporti on a te lows from Walzer’s dictum:“There can be no policy on su rren der. The thera py is ju s t ly i nvo ked wh en requ i red to prevent futu re 26 Walzer, Just and Unjust Wars, p. 20. a ggre s s i on and to en a ble the defe a ted com- 27 I owe these questions to Michael Walzer. mu n i ty to meet intern a ti onal com m i t- 28 Christian Barry rightly pushed me to point this out.

52 Brian Orend ju s ti ce in war if t h ere are not, u l ti m a tely, Should political leaders on trial for jus ad responsible men and women.”29 Individuals bellum violations be found guilty, through a who play a prominent role during wartime public and fair proceeding, then the court is must be held acco u n t a ble for their action s at liberty to determine a reasonable punish- and what they bring abo ut . Th ere are , of ment, which will obviously depend upon the course, two broad categories of war crimes: details of the relevant case.Perhaps the pun- those that vi o l a te jus ad bellum and those i s h m ent wi ll on ly consist of penalizing the that violate jus in bello. leaders financially for the amount of com- Jus ad bellum war crimes have to do with pensation owed to Victim,as previously dis- “p l a n n i n g, prep a ri n g, i n i ti a ting and wag- c u s s ed . Or perh a p s , should the need for i n g” a ggre s s ive war. Re s pon s i bi l i ty for the po l i tical reh a bi l i t a ti on be invo ked , su ch commission of any such crime falls on the leaders will need to be stripped of power and s h o u l ders of the po l i tical leader(s) of t h e barred from political participation, or even a ggre s s or regi m e . Su ch cri m e s , in the lan- ja i l ed . Some figures in the Bosnian Serb g u a ge of the Nu rem berg pro s ec utors , a re community were, for instance, barred from “c rimes against pe ace .”3 0 What this pri n c i- seeking office in the first postwar election.32 ple entails is that,subject to proportionality, It is not possible, a priori, to stipulate what the leaders of Aggressor are to be brought to exactly is required with regard to such per- trial before a public and fair intern a ti on a l sonal punishments.The point here is simply tribunal and accorded full due process rights that the principle itself,of calling those most in their defen s e . Why subj e ct this pri n c i p l e re s pon s i ble for the aggre s s i on to task for of p u n i s h m ent to proporti on a l i ty con- their crimes, must be respected as an essen- straints? Why concur with Walzer when he tial aspect of justice after war.It is relevant to says that “it isn’t always true that their lead- add that the actual enforcement of this prin- ers ought to be punished for their crimes”?31 ciple might constitute a nontrivial deterrent The answer is that sometimes such leaders, to futu re acts of a ggre s s i on on the part of in spite of t h eir moral dec rep i tu de , ret a i n ambitious heads of state. If such figures have con s i dera ble popular legi ti m ac y, and thu s good reason to believe that they will them- bringing them to trial could seriously desta- selves, personally, pay a price for the aggres- bi l i ze the po l i ty within Aggre s s or. NATO sion they instigate and order, then perhaps forces, for example, held off for a long time t h ey wi ll be less likely to undert a ke su ch on the sei z u re of prom i n ent pers on s misadventures in the first place. ch a r ged with war crimes in the form er Im portant progress has recen t ly been Yugoslavia, presumably for reasons includ- made on this front. First, the former prime ing this on e . Ca re needs to be taken , a s minister of Rwanda in late 1998 was found alw a ys , that appeal to proporti on a l i ty doe s g u i l ty of war crimes and crimes aga i n s t not amount to rew a rding aggre s s ors , or to letting them run free and unscathed despite 29 Wa l zer, Just and Unjust Wa rs, p. 28 8. See also W. their grievous crimes. Yet this care does not Michael Reisman and Chris T.Antoniou, eds., The Laws vitiate the need to consider the destruction of War (New York: Vintage, 1994), pp. 317-405. and suffering that might result from adher- 30 Walzer, Just and Unjust Wars, pp. 292-301. 31 Ibid., p. 123. ing totally to what the requirements of jus- 32 The Dayton Peace Agreement, www.state.gov/www/ tice as retribution demand. regions/eur/bosnia/bosagree.html.

Ju sti ce after Wa r 53 humanity in connection with the brutal civil the very tem pting po s i ti on of p u n i s h i n g war that consumed that country in the sum- on ly jus ad bell u m war cri m e s . In order to m er of 1 9 9 4. Moreover, Serbian pre s i den t avoid charges of applying a double standard Sl obodan Mi l o s evic was form a lly indicted and ex acting reven ge , the ju s ti f i ed side by an international tribunal for committing mu s t — de s p i te the ju s ti ce of its cause in war crimes in May 1999, the first time a sit- f i gh ting—also be wi lling to su bmit mem- ting head of state has faced such a charge.In bers of its military for the commission of jus June 2001, after losing power, Milosevic was in bell o war crimes to an imparti a lly con- t a ken under arrest and tra n s ported to Th e s tru cted intern a ti onal tri bu n a l . We know Hague for trial.33 t h a t , in 1 9 9 8, the intern a ti onal com mu n i ty Jus ad bellum war crimes trials are not the voted in Rome to establish at The Hague a on ly ones mandated by intern a ti onal law permanent court for the prosecution of war and just war theory: attention must also, in crimes and other crimes against humanity. the aftermath of conflict, be paid to trying Rati fic a ti o n of the Trea t y of Rome is close at those accused of jus in bello war crimes.Such ha n d , and before the end of 20 0 2 an importa n t c rimes inclu de : del i bera tely using indis- ne w interna ti o nal instit utio n should be born. criminate or disproportionate force; failing to take due care to protect civilian popula- P U B L I C I T Y ti ons from lethal vi o l en ce ; using we a pon s that are themselves intrinsically indiscrimi- Do the terms of the set t l em en t , as thus far nate and/or disproportionate, such as those d i s c u s s ed , n eed to be public? On the on e of mass destruction; employing intrinsically h a n d , war set t l em ents of ten exert deep h einous means, l i ke ra pe campaign s ; a n d i m p act on peop l e’s live s . Th ey are thu s treating surrendered prisoners of war in an en ti t l ed to know the su b s t a n ce of pe ace i n humane fashion , for ex a m p l e , tortu ri n g s et t l em en t s , and espec i a lly how su ch are t h em . Pri m a ry re s pon s i bi l i ty for these war pred i cted to affect them . Im m a nu el Ka n t , c rimes must fall on the shoulders of t h o s e for on e , was veh em ent abo ut this publ i c i- soldiers, officers, and military commanders ty requ i rem ent in his famous wri ti n gs on who were most actively invo lved in thei r w a r.35 But som eone might ch a ll en ge this com m i s s i on . O f f i cers and com m a n ders p u bl i c i ty pri n c i p l e , for instance , by citi n g c a rry con s i dera ble moral bu rdens of t h ei r a co u n terex a m p l e . We know that part of own during wartime. They are duty-bound the re a s on why the Sovi et Un i on backed not to issue orders that violate any aspect of down du ring the Cuban Missile Crisis was the laws of w a r.Fu rt h erm ore , t h ey mu s t plan military campaigns so that fores ee a bl e 33 For more on war crimes trials,see Reisman and Anto- ci vilian casua l t ies are minimized, and mus t niou, eds., The Laws of War, pp. 317-405. See also Juan E. tea ch and train their soldiers not onl y abou t M é n de z ,“ Na ti onal Recon c i l i a ti on , Tra n s n a ti onal Ju s- combat but also abou t the rules of just war tice, and the International Criminal Court,” pp. 25-44, th e ory and the laws of arm e d confli ct . 34 and Th omas Pogge , “Ach i eving Dem oc rac y,” pp. 3-2 3, both in Ethics & International Affairs 15, no. 1 (2001). Something of note here is that, unlike jus 34 Walzer, Just and Unjust Wars, pp. 304-28. ad bellum war crimes, jus in bello war crimes 35 Im m a nu el Ka n t , The Met a p hys i cs of Mo ra l s, tra n s . can be , and usu a lly are , com m i t ted by all Mary Gregor (Cambridge: Cambridge University Press, 1 9 9 5) , pp. 1 14-24; and Brian Oren d , War and In tern a- s i des in the con f l i ct . So, c a re needs to be tional Justice: A Kantian Perspective (Waterloo: Wilfrid taken that Victim and any Vindicator avoid Laurier University Press, 2000).

54 Brian Orend because of John F. Ken n edy ’s sec ret assu r- be forced to sleep in later. In gene ral , this rul e s a n ces that the Un i ted States would rem ove ou t insistenc e on uncond i ti o nal sur rend er. missiles from Tu rkey short ly after the Rights Vindication. The settlement should Sovi ets rem oved thei rs from Cu b a .3 6 But s ec u re those basic ri ghts whose vi o l a ti on this instance does not deal with a full - tri ggered the ju s ti f i ed war. The rel eva n t bl own war, mu ch less a postwar peri od , rights include human rights to life and lib- and so it is not direct ly analogo u s . Peop l e erty and community entitlements to territo- who have su f fered thro u gh a war de s erve ry and soverei gn ty. This is the main to know what the su b s t a n ce of the set t l e- su b s t a n tive goal of a ny decent set t l em en t . m ent is. Respect for rights is a foundation of civiliza- This does not mean that the people mus t tion, whether national or international.Vin- exp l i c i t l y and immedi a t ely end orse the pro- dicated rights, not vindictive revenge, is the posed settlement, for instance through a order of the day. pl e bis c i te . Nor does it mean that the sett l em en t Di scri m i n a ti o n . Di s ti n cti on needs to be must be draf t ed up in a formal trea t y. Bot h made between the leaders, the soldiers, and things are clearly permissible, and perhaps the civilians in the country one is negotiat- des i ra b le as well: a show of popular sup port ing with. Civilians are entitled to reasonable for a sett l em e nt might bol s t er its endu ra n ce ; immunity from punitive postwar measures. and writ ing out the pea ce terms can enh a n c e This rules out sweeping soc i oecon om i c the cla ri t y of everyone ’s underst a n d i n g s and sanctions as part of postwar punishment. exp ecta ti on s . But it seems needle s s l y strin g ent Punishment #1. When the defeated coun- to insist that both phen om e na must be there try has been a bl a t a n t , ri gh t s - vi o l a ti n g for the settlement to be legitimate. We can a ggre s s or, proporti on a te punishment mu s t im a g ine num e rous practical difficu l t ies wit h be meted out. The leaders of the regime, in running a plebis c i t e in the immedi a t e pos t w a r particular, should face fair and public inter- period , and we can imagine commu n i t ies that national trials for war crimes. come to an understanding on the settle- Punishment #2. Soldiers also commit war men t — e ven going so far as to adh e re to it— c ri m e s . Ju s ti ce after war requ i res that su ch without nailing down every possible soldiers, from all sides of the conflict, likewise conti n g ency in a deta i l e d legal docu m en t . be held accountable at trial. Co m pen s a ti o n . Financial res ti t uti on may be mandated, subject to both proportional- S U M M A RY OF THE SET i ty and discri m i n a ti on . A postwar po ll tax Perhaps it would be helpful to list the prof- on civilians is imperm i s s i bl e , and en o u gh fered set of s et t l em ent pri n c i p l e s . A ju s t resources need to be left so that the defeated state, seeking to terminate its just war suc- co u n try can begin its recon s tru cti on . To cessfully, ought to be guided by all of the fol- beggar thy neighbor is to pick future fights. lowing norms: Rehabilitation. The postwar environment Propo rti o n a l i ty and Pu bl i ci ty. The pe ace provides a promising opportunity to reform s et t l em ent should be both measu red and decrepit institutions in an aggressor regime. re a s on a bl e , as well as publ i cly procl a i m ed . To make a sett l em e nt serve as an instrum en t 36 Martin Walker, The Cold War: A History (New York: of reveng e is to make a vol a t ile bed one may Henry Holt, 1995), pp. 160-83.

Ju sti ce after Wa r 55 Such reforms are permissible but they must thought and effort as the purely military exit be proportional to the degree of depravity in s tra tegy so mu ch on the minds of po l i c y the regime. They may involve: demilitariza- planners and commanding officers. ti on and disarm a m en t ; po l i ce and ju d i c i a l One final aspect merits consideration: To retra i n i n g ; human ri ghts edu c a ti on ; a n d what extent can these principles of just war even deep structural transformation toward s et t l em en t , devel oped mainly in a conven- a peaceable liberal democratic society. tional interstate context, be applied to non- Any serious defection, by any participant, trad i ti onal intra s t a te con f l i cts? Th i s from these principles of just war settlement question gains sharpness when we note that should be seen as a violation of the rules of most recent conflicts seem to have been of just war termination,and so should be pun- the latter sort : brutal civil wars in Rwanda ished. At the least, violation of such princi- and Bo s n i a ; mu l ti f acti on wars in cen tra l ples mandates a new round of d i p l om a ti c Af ri c a ; a rm ed insu rrecti on in Ch ech nya ; n ego ti a ti on s — even binding intern a ti on a l and forcible armed intervention in Somalia arbitration—between the relevant parties to and Ko s ovo. The short answer is that the the dispute. At the very most, such violation extension of these principles is another proj- may give the aggrieved party a just cause— ect .3 7 It remains import a n t , t h o u gh , to get but no more than a just cause—for resuming the principles right in the more convention- h o s ti l i ti e s . Fu ll reco u rse to the re su m pti on al case,before moving on to the nonconven- of h o s ti l i ties may be made on ly if a ll the ti on a l , and arguably more com p l ex , on e s . other traditional criteria of jus ad bellum are The lon ger answer to the qu e s ti on is that, satisfied in addition to just cause. with mod i f i c a ti on s , the principles devel- oped here no do u bt serve as a com pell i n g m oral blu eprint for app l i c a ti on to these C O N C LUSION: AN ETHICAL other cases.Indeed,some attempt was made “EXIT STRAT E G Y ” here to do just that, in connection with the “war against terrorism” in Afghanistan. The The topic of justice after war, or jus post bel- principles of fered here deal with the core lum, has been somewhat neglected, yet has con troversies invo lved in any use of m a s s recently become prominent, even pressing, political violence, and they capture precise- in international relations. This article offers ly those values and concepts we all employ to one plausible set of just war set t l em en t reflect on,and speak intelligently about, the norms, which communities seeking to con- ethics of war and peace. clude their just wars properly ought to obey. The terms of a just peace should satisfy the requirements listed above in the summary. 37 See Nigel Biggar, ed., Burying the Past: Making Peace There needs to be an ethical “exit strategy” and Doing Justice After Civil Conflict (Washington,D.C.: f rom war, and it de s erves at least as mu ch Georgetown University Press, 2001).

56 Brian Orend