A Realistic and Effective Constraint on the Resort to Force? Pre-commitment to Jus in Bello and Jus Post Bellum as Part of the Criterion of Right Intention

Abstract

This paper explores Brian Orend's contribution to the just war tradition, specifically his proposed jus post bellum criteria and his idea of pre-commitment to jus in bello and jus post bellum as part of an expanded jus ad bellum criterion of right intention. The latter is based on his interpretation of Kant's work: that as part of the original decision to begin a war, a state should commit itself to certain rules of conduct and appropriate war termination, and if it cannot so commit, it should not continue further down the path to using force. Orend's revised right intention brings jus post bellum ‘into the fold’ of the just war tradition, requiring that state obligations go beyond correct conduct in war. The article argues that whatever the nature of the just cause, there is a compelling argument for committing to jus in bello and jus post bellum as part of jus ad bellum right intention. The justness of the cause in the contemporary era requires strictness rather than leniency in the conduct and termination of war for a state to remain legitimate in the eyes of the world. In the context of Orend's proposals, this would require that states ‘do their homework’ and ‘tie themselves to the mast’; this includes providing proof that the situation on the ground is understood, conducting a feasibility test on the proposed intervention and publicly identifying and committing to their obligations and responsibilities during and after war. Recognising the practical and political obstacles to adopting this idealistic revision of the just war tradition, the paper nevertheless concludes that Orend's contribution is significant and worthy of exploration: it offers a kernel of hope for counteracting pressures to lower the threshold of resort to force, delivering greater justice for the innocent victims of war and providing greater probability of durable peace post-war.

Keywords:

• Afghanistan
• humanitarian intervention
• Iraq
• jus post bellum
• just war tradition
• right intention

Acknowledgements

The author wishes to thank the journal's two anonymous referees for suggestions and encouragement, and Gregory Reichberg and Henrik Syse for their inspirational teaching, for originally suggesting that this article be written, based on a paper the author prepared for their Ethics of War and Peace course, and for providing advice on the focus and structure of the original paper. Additional thanks is also sincerely extended to Dr. Syse who has helped guide the article through to publication and provided ongoing support and motivation.

Notes

1. Just war tradition is used interchangeably with just war theory in this paper.

2. Jus ad bellum is the ‘justice of war’, that is, the justice of going to war; jus in bello, ‘justice in war’, pertains to military conduct in war; jus post bellum is ‘justice post war’, which in this paper, following Orend, is taken to encompass both just war termination (the immediate post-war period) and justice in the longer term.

3. I envisage Orend's contribution as also providing greater rights and obligations for the citizens of states contemplating going to war.

4. I take ‘criteria’ to be synonymous with norms, rules, and principles in this paper, and hence use them interchangeably.

5. Would, for instance, the obligations in bello and post bellum for a war of self-defence against an aggressive attack differ from those of a war in self-defence of others, a war of punishment or a humanitarian intervention (HI)? And what about the possible scenarios in between, that do not fall within the ‘normal’ scenario of wars between states, such as the ‘War against Terror’ targeting groups within states, possibly failed states? I will not be attempting to deal with all these categories; I merely wish to illustrate the potential complexity in answering the question.

6. Remaking of the rules of war is exemplified by the ‘enemy combatant’ and ‘unlawful combatant’ status of captured fighters in Afghanistan, the lengthy detention without charge and trial at Guantanamo Bay, and trial by internal military commissions with constraints on rights of defence. For more details on these issues, see the Human Rights Watch website where the following articles, amongst others, are found: Fellner 2003; Roth 2003; Roth 2004a; Roth 2004b.

7. The ICISS calls for the current understanding of sovereignty to be turned on its head – from the right to control or ‘right to intervene’ to the ‘responsibility to protect’. This argument is based on the fact that states, by joining the U.N., accept the responsibilities of membership, which is a dual responsibility – to their citizens and to the international community. The responsibility to protect covers not just a responsibility to react, but also to prevent and then rebuild. R2P sees prevention as the single most important dimension of the responsibility to protect (see Evans 2004).

8. There are also vocal critics of the R2P, for example from within the South and academic circles. For a strong argument in support of sovereignty and non-intervention and against accountability as envisaged in the R2P (due to its erosive effect on Southern States’ sovereignty and the ability of major powers to remain unaccountable), see Chandler (2004).

9. Humanitarian intervention (HI) in this paper is taken to be equivalent to humanitarian military intervention (HMI). In the humanitarian field, the two are usually distinguished from one another, with HI being conducted without resort to force.

10. The parallels between HI and the JWT are highlighted by Fixdal & Smith (1998) who argue that the HI debate could well gain from engaging with the JWT, as the latter in fact encompasses most of the arguments ongoing in the HI debate.

11. Of course, for a state going to war in self-defence, self-interest is the main motive! It is worth noting that Fixdal & Smith (1998) mention that, for HI advocates, there is a tactical attraction to a state having self-interested motives, as it is thus more likely to launch an intervention and have public support for doing so.

12. Wheeler, referring to arguments by Fernando Teson and Gary Klintworth, notes that in ‘the cases in which an actor justifies the use of force by invoking humanitarian claims… [those seeking] to occupy the high moral ground risk being exposed as hypocritical if they fail to meet this standard of behaviour’ (Wheeler 2003: 196–197). This hypocrisy could potentially be exposed more readily with a pre-commitment, hence the utility and appeal of employing such a constraint. Interestingly, the three authors also question the priority/importance given to motives. They examine the idea that even if a state has no humanitarian motive and takes military action against another state, if the result is a better humanitarian outcome (e.g., Vietnam's invasion of Cambodia to remove Pol Pot), then it can be considered a humanitarian intervention, albeit an ‘inadvertent humanitarian intervention’. In other words, motives should not be accorded as much prominence as they are: ‘Motives should only disqualify an intervention as humanitarian if it could be shown that they had undermined the humanitarian success of the operation’ (ibid.).

13. The aborted international mission in Somalia is often offered as an example of incompatible or disconnected vision, mandate, and resources: the U.S. intervention responded to insecurity and famine but did not support achievement of long-term solutions – such as putting in place structures for the long-term maintenance of rule of law. When the U.N. took over, it had a considerably more ambitious security and political mandate and long-term vision, including the disarmament of the militia in order to create the space for civilian leadership to emerge. This mandate failed as the U.N. force lacked the commensurate means to realizing them (Wheeler 2003: 204; International Commission on Intervention and State Sovereignty 2001: 60).

14. Here we come to the issue of feasibility and practicality. To what extent is it possible to give a priori commitments with any degree of detail? If war is chaotic, random, unpredictable, and unfolds in unforeseen ways, what import can commitments meaningfully have? How exactly would a commitment to upholding discrimination and proportionality be stated? States are not going to reveal their tactics – open declaration, as Fixdal & Smith (1998: 291) note, ‘does not mean that details of military plans have to be revealed to parties who might try to resist and block intervention’.

15. The KJWT criteria are ten in number: six ad bellum (KJWT1: just cause; KJWT2: right intention; KJWT3: proper authority and public declaration; KJWT4: last resort; KJWT5: comparative justice; and KWJT6: consistency with the ideal of perpetual peace), three in bello (KJWT7: discrimination; KJWT8: no intrinsically heinous means; and KJWT9: no means may be employed which are inconsistent with the long-term ideal of perpetual peace), and one post bellum (KJWT10: commitment to the articles of perpetual peace). KJWT10 includes immediate and more distant justice, that is, the rights and duties of states in the termination period of a particular war and more distant ones regarding the particular war and war in general. Orend describes Kant as ‘elusive’ when talking about immediate justice (see Orend 2000b: 58), whereas ‘distant’ jus post bellum is based directly on Kant's six preliminary and three definitive articles of perpetual peace, which includes domestic and international reform (see Orend 2000b).

16. This is outlined in detail in Orend (1999, 2000b). Kant's idea for an international order was a cosmopolitan federalism in which like-minded nation states (republican in constitution) voluntarily come together under a form of ‘social contract’ to renounce war between themselves and agree to perform their state duties and have their state rights respected.

17. This is Orend's alternative to Walzer's jus in bello right intention ban on acts or weapons which ‘shock the moral conscience of mankind’, which is itself the equivalent of the ban on means mala in se (methods evil in themselves) (see Orend 2000a: 124; Orend 1999: 349). Right intention also appears in the jus in bello criteria of the National Conference of Catholic Bishops, where it is described in the following way: ‘Even in the midst of conflict, the aim of political and military leaders must be peace with justice so that acts of vengeance and indiscriminate violence, whether by individuals, military units or governments, are forbidden’ (National Conference of Catholic Bishops 1993: 454).

18. For example, the failure of the U.S. to ensure the warlords supported by the U.S. upheld the rules of jus in bello, illustrated by the alleged massacres of Taliban POWs near Mazar-i-Sharif by General Abdul Rashid Dostum's forces; the continued legitimization of warlords in Afghanistan through their role in the war against terror, and the lack of prosecution of those responsible for human rights/war crimes, all prevent any meaningful demobilization, disarmament, and reintegration (DDR), and undermine all other efforts to achieve security and stability. With respect to Iraq, the most infamous example is the abuse of Iraqi prisoners by U.S. forces at Abu Ghraib prison in Baghdad.

19. This undoubtedly is as applicable to all other forms of military intervention. The ICISS continues with the statement that ‘To win the hearts and minds of the people under attack is presumably impossible during the attack but planning has to be done in such a way that not all doors will be closed when the armed conflict comes to an end’ (International Commission on Intervention and State Sovereignty 2001: 44, 63). This seems slightly at odds with its previous statements about jus in bello, and it can be argued that winning hearts and minds starts as soon as a border is crossed by a military force, whether in a war or HI situation, and this is partly what right intention in jus in bello aims to ensure.

20. Other similarities between the two conflicts are the escalating U.S. body count, and the increasing sensation of being ‘mired’ in a conflict with no conclusion in sight.

21. The second criterion is that the state considering intervention must be freely invited to intervene by the people in the target country who require rescue (Orend 2000b: 187). Evidently this criterion is relevant to the debate on the Afghanistan and Iraq invasions. It would appear to show respect for John Rawls’ and Walzer's principles of self-determination. Assuming an intervention is in response to calls for help, which neither Afghanistan nor Iraq were, an immediate question concerns who is the legitimate voice; who are the legitimate people seeking assistance when a state is divided along ethnic and other lines?

22. Orend distinguishes between these ‘immediate’ principles for jus post bellum, and a longer-term jus post bellum. Drawing on Kant's Principles of Perpetual Peace, he proposes four key global institutional reforms that would act to ensure states ‘wrap up their wars in a satisfactory fashion, or – better still – increasingly resolve their disputes through judicial processes instead of resorting to armed force.’ In other words, he proposes global institutional reforms that would aim to reduce dramatically the long-term incidence and destructiveness of war, and hence move the world further along the road to Kant's perpetual peace. The first of these is a compliance/incentive tool: denial of recognition to states that fail to fulfil their sovereign functions (these being domestic law and order; domestic human-rights fulfilment; protection and representation vis-à-vis the world community; adherence to basic norms of international justice). This could entail expulsion from the U.N. or assignation of second-rate status in the U.N. and other international regimes. The second is providing resources to destitute states to enable them to make serious and sustained efforts to fulfil human rights through aid, trade, and finance preferences, and economic instruments such as a Global Resources Tax. The third is the establishment of a permanent global court for war crimes trials (as per the International Criminal Court). The fourth is the realization of Kant's cosmopolitan federation, where Orend explores the possibilities for reform and strengthening of the U.N. (Orend 2000b: 114–115, 242–255).

23. Also dealt with by Walzer as part of his conception of jus post bellum (Walzer 1977: 135).

24. What this means is the avoidance of exceptionalism. It requires every state and its military to be under the same rules and accountable to an international tribunal, that is, the International Criminal Court.

25. The four pillars are: security, socio-economic foundations for long-term peace, political framework for long-term peace, and reconciliation and justice. The Utstein Report notes that it requires a decade or more of sustained effort to build a sustainable peace. It recommends that every would-be intervening state develop a peace-building strategy to act as an overarching guiding policy framework for interventions in general, as well as an intervention strategy for each specific case (Smith 2004: 10–11).

26. Due to an aggressor state's ‘truly atrocious’ actions during the war or its continuing ‘heinous’ nature that threatens international justice and human rights.

27. It notes that: ‘Too often in the past the responsibility to rebuild has been insufficiently recognized, the exit of the interveners has been poorly managed, the commitment to help with reconstruction has been inadequate, and countries have found themselves at the end of the day still wrestling with the underlying problems that produced the original intervention action’ (International Commission on Intervention and State Sovereignty 2001: 39).

28. Again, just as relevant for the Afghanistan and Iraq invasions is the following: ‘There is force in the argument that without such a strategy there are serious risks in mounting any military intervention at all, as an unplanned, let alone precipitate, exit could have disastrous, or at best unsettling, implications for the country, and could also serve to discredit even the positive aspects of the intervention itself’ (International Commission on Intervention and State Sovereignty 2001: 39, 41). Of course, the wishes of the citizens of the invaded country cannot be ignored. As Iraq illustrates, there are challenging moral dilemmas involved in determining the best time and way to exit. Respecting calls for self-governance, a return to full sovereignty including complete troop withdrawal must be balanced with maintaining a presence to support fledgling governments and systems of law and order. Further, it should not be assumed that the intervening forces can be more effective than the locals, or that local forces will command greater respect.

29. Collateral damage refers to unintended civilian deaths as a result of military action (foreseen or unforeseen, foreseeable or unforeseeable). Force protection is the degree of priority accorded to protecting one's own military forces. The force protection imperative is seen to be dictated largely by domestic politics – public opposition to or support for the cause and the acceptability of the risks involved for soldiers. For more on force protection and a ‘casualty-averse’ public in the context of HI, see Snider et al. (1999), Hendrickson (1997), Cook (2003), and Fixdal & Smith (1998).

30. Though, given that states have multiple motives, the national interest could be camouflaged behind humanitarian motives, with the latter then used to justify a greater imperative for force protection. On the other hand, the tendency towards a broadening of what constitutes the national interest, due to globalization and recognition of the inter-connectedness of and inequalities between countries, may translate into a ‘softening’ of the force protection imperative.

31. This seems paradoxical: should not interventions with humanitarian motives – that aim to save the citizens of a nation or a group of people – place greater priority on the protection of those civilians and hence necessarily entail acceptance of greater risk to the intervening military forces?

32. Mandelbaum says that Kosovo was one example of the ‘Clinton Doctrine’ whereby the innocent are punished ‘in order to express indignation at the guilty [leaders of these countries]’. The other examples were the crushing embargoes on Haiti and Iraq which inflicted suffering on the civilian populations (Mandelbaum 1999:7).

33. It is interesting to note that there is concern with the force protection imperative from within the military establishment. Snider et al., academic staff of the U.S. Military Academy at West Point, consider the force protection imperative as representing an erosion of the ethical norms of military professionalism since it proscribes the self-sacrifice and risk which are inherent in officer/soldier concepts of duty (Snider et al. 1999: 150–151, 154).

34. For example, the U.S. used cluster bombs in Iraq as a means to protecting its soldiers by clearing areas of the enemy as extensively as possible (Hellestveit 2004).

35. President Bush is also quoted as having said: ‘We're making progress against military targets, and that is our objective. Unlike the enemy, we seek to minimize, not maximize, the loss of innocent life.’ Address by President George Bush to the U.N. General Assembly, November 10, 2001, U.N. Headquarters, New York (Lopez 2002: 22).

36. This seems to illustrate the lack of respect for upholding the rules of discrimination.

37. The BBC reports a Pentagon spokesperson as responding: ‘This conflict has been executed in the most precise fashion of any conflict in the history of modern warfare [sic]’ (British Broadcasting Corporation 2004). This surely points to the need to re-consider the definition of and importance given to collateral damage. Many Iraqis have died after the official U.S. declaration of the end of war, and many have died, not through U.S. military action, but as a result of the instability created by the invasion, for example at the hands of insurgents (a prime example being those Iraqi men killed in police recruitment lines).

38. Thomas L. Friedman, quoted in Lang & Cox (2002); known also as the Pottery Barn Rule, frequently said to have been invoked by Secretary of State Colin Powell in the run-up to the invasion of Iraq (Woodward 2004: 150).

39. The argument here being that states will not want to be exposed as hypocrites and thus will be inhibited from acting in ways that contradict their stated moral purposes; they will seek to ensure conformity between their legitimating reasons and subsequent actions (Wheeler 2003: 193, 207–208).

40. However, Mark Schneider, in his testimony to the U.S. Senate Foreign Relations Committee in 2004, pointed out that ‘the international community currently is committing about one-fourth the level of per capita support to Afghanistan that it did in Bosnia or East Timor or El Salvador’, and that ‘there must be at least a 10 year commitment at an even higher level of support than is currently the case’ from the international community (Schneider 2004).

41. It is also undermining other efforts crucial for nation building such as bringing the perpetrators of human rights/war crimes to justice, creating the space and groundwork for building trust and achieving reconciliation between the various ethnic groups, undertaking disarmament, demobilization and reintegration and delivering humanitarian aid.

42. Afghanistan's reliance on opiate production can only be described as overwhelming. Afghanistan now produces almost 90 percent of the world's opium, with poppy production spread across 130,000 hectares in all 32 provinces, involving more than 356,000 households (one in ten Afghanis) and contributing US$2.8 billion to Afghanistan's GDP, almost equivalent to two-thirds of the legal economy (McGeough 2005).

43. Another important lesson here comes from the experience of HI. Getting control of security is identified as a critical first step: ‘Past experience demonstrates that, if the internal security challenge is not handled early, “old” habits and structures will prevail and undermine other efforts to enhance post-conflict peace building’ (International Commission on Intervention and State Sovereignty 2001: 64).

44. Simonsen offers similar observations: ‘…while every international institution represented in Kabul identifies the warlords as a key source of instability, the USA continues to fund and arm at least some of them’. Thus, the priority of fighting the Taliban and al-Qaeda has been preventing the U.S. from being consistent in its support for peace building, as it is not dealing with the problem of warlordism. This is at the expense of such vital nation-building exercises as working to remove ethnicity from institutional design and policy, reforming the security ministries, and providing the ‘space’ for the Afghan population to move away from voting along ethnic lines via the curbing of the power of the warlords (Simonsen 2004: 722, 725–726). The November 2004 Afghan Presidential election further highlighted U.S. failure to live up to its self-stated obligation to rebuild a viable government, and to carry out justice for the ordinary Afghan: the election candidates involved those barred from standing, that is, those remaining in command of private troops or accused of abusing human rights. Further, the election was substandard and ‘democracy in the rough’. Thomas Muller of the Afghanistan Research and Evaluation Unit was reported as saying the election was a ‘fraught mix of organizational and cultural shortcomings’, which included insufficient voter education and information, insufficient international observers, and the use of local and former militia to provide security. The imperative behind the election was felt to be the U.S. Administration's desire for a clear result prior to the 2004 U.S. Presidential election (Constable 2004, McGeough 2004).

45. Borrowing from Michael Ignatieff's phrase, ‘nation-building lite’ (Ignatieff 2003).

46. See also Afghanaid et al. (2004).

47. And in doing so, the U.S. undermined its goal of expanding the liberal democratic ‘zone of peace’. Predictably, the unexpectedly high turnout at the Iraqi election on 30 January 2005 was immediately held up by proponents of the liberal democratic peace as support for their cause and evidence that the invasion had been a correct decision.

48. Though notably in the case of Iraq, this was when the other justifications and the evidence they relied on grew less credible.

49. Although it is acknowledged that not all problems the U.S. and coalition forces are facing are of their own making, in invading Afghanistan and Iraq the invading forces take on responsibility for the consequences unleashed (even if unforeseen).

50. Of course, good war strategists over the ages would have been those who, among other things, planned their campaigns well. It is worth considering the possibility of another scenario emerging: if pre-commitment ensures that states do their homework properly and are subsequently successful in going to war, producing a just outcome, and avoiding post-war quagmires, then the casualty-averse public may become less so, with the consequence of greater support for use of armed force in the future.