A Senior Thesis in Just War TheoryWhither Jus Post Bellum?Brian S. Gallagher

In abstract, the argument of this thesis will proceed in two sections. The first will discuss the grounding for the conceptual structure of Just War Theory; specifically, its traditional partitioning into two components, ad bellum and in belloalong with the relatively recent suggested addition of a third componentjus post bellum. The second section, in concluding the thesis, will argue for a revised structural conception of the theory that has formal and substantive implications for the normative content of a postwar, peace building ethic.

I.In practice, the inflation of ends is probably inevitable unless it is barred by considerations of justice itself. Michael Walzer, Just and Unjust Wars[footnoteRef:1] [1: Michael Walzer, Just and Unjust Wars (New York, New York: Basic Books, 2006), p. 120.]

Introducing Jus Post Bellum

The above pronouncement of Walzers, made in the context of his discussion of just settlements and the handling of the North Korean regime near the Korean Wars end, is notable for its concise illustration of how the principles of just war theorythough separated into different componentsnevertheless impact each other. There is first the ad bellum stock of principles, which has been stated variously but at its core consists in the criteria of i) just cause, ii) necessity, iii) proportionality, and iv) likelihood of success. In fulfilling these criteria, it is held that a state may justly resort to war. The most obvious cases in which resort to such violence is justified is in self- or in other-defense against aggression by another state, and the justice of warring for these purposes shapes the political and military aims sought at the wars conclusion. When North Korea invaded its Southern neighbor, then, a just cause to aid the latter arose, and the United States (with UN authorization) took it upon itself to carry it out. The justice the US would initially plan to exact, however, was hardly far-reaching, committed only to pushing the N. Korean forces back to their side of the 38th parallel in order to restore the status quo ante bellumoriginally there were no aims of trials and punishments, or of regime change and rehabilitation; there was only the aim of returning things to how they were shortly before war broke out. This limited military end had the implication that, politically, the US would aim short of regime change and leave the aggressor state as it was. This pursuit of limited justicelimited because of its contentedness with merely halting the aggression of N. Korea rather than bringing them to account for it and preventing its future expressioncorrespondingly limits the sort of attacks against N. Korea that are militarily appropriate. The purpose of the in bello principle of proportionality is to constrain justified military tactics to those which are necessary for, in this case, pushing the N. Korean army back across the 38th parallel. As Walzer goes on to illustrate, however, this end was not held constant; rather, in the course of the military campaign, it inflated. Warren Austin, the US Ambassador to the UN, told the latter that the forces of N. Korea should not be permitted to take refuge behind the 38th parallel because that would recreate the threat to peace[footnoteRef:2] The just cause hadnt changedit was still the protection of the South Koreansbut the reach of its justice had, namely in Austins apparent contention that restoring the status quo ante bellum would be strategically, if not also morally, wrongheaded. But in crossing that dividing line between the warring Koreas, America, Walzer remarks, also took on a more radical purpose, and goes on to say that, in so doing, it took on the goal of unifying Korea into a democracy by force, which would require of them not limited attacks within the borders of North Korea, but the conquest of the entire country.[footnoteRef:3] With this expansion of ends, new military means are made proportional, gauged in relation to a more thorough leveling of the N. Korean armed forces. And with territorial and military conquest comes the stage and period of occupation, an occasional phase of war that functions to maintain the security of a territory more than to take it over. [2: Quoted in Walzer, Just and Unjust Wars, p. 118.] [3: Ibid., p. 118.]

This change in military emphasis is important because it marks a significant transition in the occupying states political and military role in relation to the livelihood of the civilians in the society of which they occupy. This role, as a peculiar activity conducted in wars aftermath, has so far not received as rich normative theorization as the other aspects of warfightingparticularly the initiation of war and its conduct, or the component phases of ad bellum and in bellobut it has of late generated lots of constructive and speculative literature.[footnoteRef:4] In these fresh discussions of justice after war, the 2003 US invasion and subsequent occupation of Iraq proves itself as the case which most animates critical reflection on the sorts of rights, responsibilities, and obligations that come into play in the tenuous relation and strenuous situation that is the reconstitution and rehabilitation of a war-torn society. Jus post bellumas a component of the theory of waging just warclaims itself rightly equipped to grasp the ethical quandaries that follow, for instance, from the military conquest of the Iraqi state, the dismantling of its political and legal constitution, and the international stewardship required to see the downtrodden population stand up once again. Necessarily involved in these issues are concerns about the value of sovereignty and territorial integrity, the meaning of just peace and just society, and the procedures which bring these outcomes aboutlike war crimes trials, compulsory compensation, demilitarization, and/or truth commissions and apologies. If war is meant to bring about a better state of peace and prevailing justice than was present before[footnoteRef:5], then we must essentially be talking about the exercise of healing social and political relations and capabilities once war has been terminated. The question I would like to explore, then, is whether the ethical framework of just war theory can adequately provide normative guidance in this broad moral activity. [4: Brian Orend is jus post bellums most prolific advocate. His arguments are brought together in his The Morality of War (Peterborough, ON: Broadview Press, 2006), e.g. at 1920 and chapters 6 and 7. For his most recent statement of the theory, see Jus Post Bellum: The Perspective of a Just War Theorist, Leiden Journal of International Law 20, no. 3 (2007): 57191. Other supporters of jus post bellum include Gary Bass, Jus Post Bellum, Philosophy and Public Affairs 32, no. 4 (2004): 384410; Richard P. DiMeglio, The Evolution of the Just War Tradition: Defining Jus Post Bellum, Military Law Review 186 (2005): 11663; Robert E. Williams and Dan Caldwell, Jus Post Bellum: Just War Theory and the Principle of Just Peace, International Studies Perspectives 7, no.4 (2006): 30920; Patrick Hayden, Security beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory in Just War Theory: A Reappraisal, ed. Mark Evans (Edinburgh: Edinburgh University Press, 2005), 15776; and Moral Theory and the Idea of a Just War in Evans (ed.), Just War Theory, 121, at 13, 1920. Carsten Stahn, in Jus ad Bellum, Jus in Bello Jus post Bellum? Rethinking the Conception of the Law of Armed Force, European Journal of International Law 17, no. 5 (2006): 92143 theorizes jus post bellum from the perspective of international law.] [5: Walzer, in Just and Unjust Wars p. 121, quotes from Liddell Harts Strategy p. 338: The object in war is a better state of peace. Walzer goes on to describe it as a condition that is relatively safer and more secure for ordinary men and women and for their domestic self-determinations. ]

The Purpose and Scope of Just War Theory

In his 1977 preface to Just and Unjust Wars, Walzer describes just war theory as a comprehensive view of war as a human activity and a more or less systematic moral doctrine, which sometimes, but not always, overlaps with established legal doctrine.[footnoteRef:6] That was my italicization, the reason for which was to highlight and emphasize a very important point about what I contend Just War Theory is for: to articulate a set of substantive precepts and procedural standards that regulate the peculiarly massive and violent exercise of state-sanctioned warfighting.[footnoteRef:7] [6: Ibid., p. xxi.] [7: For helping me to see this point, I must thank Seth Lazar, whose working paper on this subject I read on the internet but which was, as it itself stated, not for citation. ]

This purpose has implications for how the divisions of just war theory should be interpreted; namely, I shall argue that jus ad bellum, jus in bello, (and a third component I will soon introduce) should be understood as sets of principles and procedures that govern how particular and distinct aspects of fighting a war should be practiced. At odds with understanding war in this way is Brian Orend. His conceptual characterization of the components of Just War Theory is temporal. Conceptually, he says, war has three phases: beginning, middle, and end.[footnoteRef:8] To the contrary, I hold that war has three sub-practices: the initiation of war, its execution, and its termination. [8: Brian Orend, The Morality of War, p. 160.]

Revising the theory of just war into this formulation has its advantages. In the first place, abandoning the view of war as primarily a time period of violence between states allows for a more coherent conception of Just War Theory, because doing so brings into tighter focus the activities of warfare that require justification. Secondlyand consequentlythe issue of Just War Theorys incompleteness, due to its alleged silence on the question of how wars should end, is solved. Not, however, in the way that Orend thinks he has solved it with his addition of jus post bellum, an addition thatfrom the beginning of his introduction of itconflates two importantly distinct activities: that of ending, or terminating, a war justly; and that of justly exercising and carrying out post-war rights, responsibilities, and obligations. All too often, still today, begins Orend, just war theorists stick with the first two categoriesof jus ad bellum and jus in belloand pretend that is all they have to talk about. International law, sadly, has joined just war theory regarding its relative silence on proper war termination [my italics].[footnoteRef:9] Proper war terminationisnt this clearly distinct from, say, the need to impose short-term, direct military occupation over a shattered society[footnoteRef:10]? In his account of jus post bellum, Orend clumps these practices together and expects the same set of normative principles to guide the practice of both. But the former concerns the justice of ending a war, while the latter concerns what justice might require after the war has ended. Here and in other places, Orend makes the mistake of believing that both these moral inquiries can be answered by the same ethical criterianamely the precepts and procedures outlined in just war theory. [9: Ibid., p. 160.] [10: Ibid., p. 162.]

His motivation for this is clear. Orend thinks that if the theory cannot speak to both of these ethical issues, then it will fail to be as robust as it should and succumb to a sharp, potentially devastating objection from both realists and pacifists; namely, that just war theory fails to consider war in a deep enough, systematic enough kind of way. Continuing, he says, with its hitherto narrow [my italics] focusit does not ultimately care why war breaks out and does not seek to improve things after wars end so as to make the international system more peaceful over the long term [my italics].[footnoteRef:11] Of course, I do not share these fears. As I have stated above, it is not the task of just war theory to provide ethical guidance on the very broad goal of making the international order more peaceful in the future, and this should be obvious by the name of the theory. Rather, just war theory does have a narrow focus, the focus of morally regulating warfare in the three practices I mentionedits initiation, execution, and termination. With this schema, the theory is complete and coherent and there is no need to supply it further. The task of theorizing what justice requires in the aftermath of war must be met by normative criteria outside of just war theory (which I will discuss in the second section). [11: Ibid., p. 160.]

The idea of adding to just war theory the component of just war termination comes from Darrell Moellendorf.[footnoteRef:12] He terms it jus ex bello, whichthough philosophically unimportantis a bit strange since the Latin translates vaguely to the right of war.[footnoteRef:13] To be more specific it should be termed jus terminare bellum, or the right to terminate war. This, as Ive been hinting to, is the proper third component of normative criteria to add to complete the theory. (Before sketching out these criteria, I do not want to go without mentioning an oddity of jus post bellum that makes its inclusion to the theory more suspicious and less plausible. It means justice after war and claims to render the just war theory conceptually complete; ironically, however, it incriminates itself by implying that yet another category needs to be included in virtue of symmetryif the theory requires an account of justice after war, must it not also require one of justice before war, too? This, of course, is a sort of reductio ad absurdum; my point is that, before war, the account of justice we use to evaluate our conduct in global affairs will just be our broad international political morality, grounded in universal human rights. This could be cosmopolitanism or something else; but whatever it ends up being, just as it would be our normative guide before war, so, too, would it be our guide after war (more on this in the second section). Thus, in assessing justice before and after war, calling upon the guidance of just war theory does not seem sensible.)[footnoteRef:14]* [12: Darrell Moellendorf, Jus ex Bello, The Journal of Political Philosophy 16, no. 2 (2008), pp. 123 136. ] [13: I am here relying on Google Translate.] [14: * I again credit Seth Lazar for bearing out this point.]

Jus terminare bellum, my phrasing for the criteria of just war termination, is concerned with the question of whether, and how, a war should be brought to an end. Moellendorf considers this to be a possible fourth set of criteriaalongside jus post bellumwhich he rightly describes as the arrangements that should come to pass upon wars end.[footnoteRef:15] Though he apparently regards them as compatible, my thesis will not touch upon how he might think this is so; all I need is his account of just war termination and how it is distinguished from and connects with just initiation and execution, which I will now lay out. [15: Moellendorf, Jus ex Bello, p. 123.]

To show that the criteria of jus ad bellum (the same criteria I listed at the outset) is neither sufficient nor necessary for determining whether morally a war should be terminated once it has begun,[footnoteRef:16] he begins by making an argument for the first claim that, even if a war begins completely just, it is still possible for its termination short of victory to be morally required. Reflecting on the principle of likelihood of success bears this out. Once started, a war whose success seemed probablegiven the relevant facts on an objective reading, or the available evidence on a subjective onecould still turn out, in the course of the military campaign, to be unlikely to succeed; and if its unlikely to succeed, then theres a strong reason for the wars continuation to be unjust. To put it another way, because the judgment of whether the initiation of war satisfies the ad bellum criteria is fallible, the question of whether the war is likely to succeed must be constantly reassessed during the course of the war. This is what any reasonable commitment to the justice of war requires.[footnoteRef:17] Next, and more controversially, Moellendorf defends the claim that it could very well be morally required to continue a war which was initiated unjustly, not satisfying all of the ad bellum criteria. This, its important to note, flies in the face of Orends proclamation that failure to meet jus ad bellum results in automatic failure to meet jus in bello and just post bellum. But for Moellendorf, such positive shifts in the justice of a war are demonstrably illustrated with the case of Iraq: If grave humanitarian danger provides just cause for intervention, then surely it justifies continuing a war, even if the war originally did not satisfy the principle of just cause.[footnoteRef:18] He does not share Orends conviction that once youre an aggressor in war, everything is lost to you, morally.[footnoteRef:19] [16: Ibid., p. 124.] [17: Ibid., pp. 125 126. ] [18: Moellendorf, Jus ex Bello, p. 128.] [19: Orend, The Morality of War, p. 162.]

This point of divergence is extremely interesting because it leads to a fundamental question about the nature of a just war: namely, under what conditions does the overall justice of a war change? On Orends view, there is no redemption for a war that starts out unjustlyjus ad bellum failure corrupts the whole resulting project. Referring to Iraq, he says, even if it all turns out well, that still will not make the original decision just; it will simply mean that the post-war situation was not as bad as it might have been.[footnoteRef:20] Orend, admittedly, is working to construct what he contends is an ideal conception of post-war justice; and thus, no matter how much continuing a war might remedy injustice, if it starts unjust it stays unjust.[footnoteRef:21] But this is unhelpful and a weakness in Orends account, for there is rarely ever a war which is ideally just, and in his attempt to articulate what that might be, he at the most blinds himself to an entire component of just war theory, or at the least hastily passes over it. For he does, in a brief passage, come close to hitting upon the central notion of jus terminare bellum when he speculates on the bedrock limit to the justified continuance of a just war [my italics][footnoteRef:22]specifically, since all just causes are grounded on the principle of rights vindication (a just cause is just because it vindicates violated rights) no war can justifiably continue once the violated rights that grounded the just cause have been vindicated by the war. In other words, the principle of rights vindication entails the transformation of a just war into an unjust one if it devolves into something like a Crusade, where the goal of the war is no longer rights vindication but rather conquest or annihilation. But, as I said, this is just to pass over terminare bellum; to give it proper treatment, as Moellendorf does, one must investigate the conditions under which even an unjust war may be justifiably continuedand if it may, it can no longer be regarded as unjust. [20: Ibid., p. 195.] [21: Ibid., p. 163.] [22: Ibid., p. 163. ]

But the justice of the original decision to go to war, for Orend, is very important; and Moellendorf acknowledges that his relative lenience in this respect might constitute a reasonable objection to his account. Still, he says, in the event that a war that was unjust to initiate becomes just to continue, the case for continuing is based in part on the danger of compounding the initial injustice by ending a war when good reason has developed to pursue it.[footnoteRef:23] If, according to Orend, the warstarted unjustlyis irredeemably unjust, should the good reason to continue with the war be ignored and allowed pass away? What if a pressing cause for humanitarian intervention cries out for attention, as it surely did in Iraq? He concedes that we could sayif American-led reconstruction worksthat Iraq is better off but that the USs war, despite being successful, cannot be fully just because of its unjust initiation. Justice for Orend, then, is a matter of degree, as he bears out explicitly when he says, the less just your start of war, the fewer your rights in the post-war phase.[footnoteRef:24] But how, given his conceptual and normative resources presented thus far, would he be able to say that the US should continue with the war given that it started unjustly? There seems to be no moral principle which Orend can call upon to support the bettering of the Iraqi state if such action would mean continuing an unjustly initiated war. This is a consequence of his account lacking treatment of jus terminare bellum, a consequence with which Moellendorf is not inflicted because he allows for the morality of a war to shift in response to new and pressing causes arising from the vicissitudes of military conflict. [23: Moellendorf, Jus ex Bello, p. 130.] [24: Orend, Morality of War, p. 195.]

Orend can be seen to unconsciously struggle with this theoretical weakness as he contradicts himself concerning the USs moral responsibility in reconstructing Iraq. Discussing the ends of a just war, he remarks that it is only when the victorious regime has fought a just and lawful war, as defined by international law and just war theory, that we can speak meaningfully of rights and duties, of both victor and vanquished, at the conclusion of armed conflict.[footnoteRef:25] If post-war rights and duties have meaning only when a war is began justly and justly concluded, it would seem America has no means of justification in its restorative occupational role in Iraq. Orend realizes this, and tries to wiggle away from this conclusion in asserting that the US should not just up and leave because of the Pottery Barn Rule dictate: if you break it, you buy it. In breaking Iraq, Orend contends, the US brought upon itself separate responsibilities to help put Iraq back together [my italics].[footnoteRef:26] He goes on to say that America, therefore, has few rights, but many duties, regarding post-war Iraq [my italics]. I assume that he takes these duties of America to have meaning in the sense above, but how can it be reconciled with that stance he takes? Either the US has meaningful duties, or it does not. This is perhaps the central problem with Orends account of jus post bellum: he wants to derive post-war duties from the just adherence to just war principles and hold the US to that standard, yet he also cant avoid granting the US post-war duties despite their failure to uphold that standard. Thus his invocation of separate responsibilitiesseparate, presumably, because they are not derived from adherence to just war principles. But from where, then, are they derived? If they are derived from the Pottery Barn Rule, as Orend readily concedes, our task must then be to further characterize the ethical nature of this principle, and to put forward an account of wherein an international political ethicthis principle fits. Orend does not do this. Rather, he is content to assume what he must prove: namely, that the goal of regime change, of realizing human rights, of building a minimally just society,[footnoteRef:27]can be read off, and extrapolated from, the jus ad bellum principles which justify the resort to war in the first place. To his credit, this is very nearly right; for the mistakethe fallacious stepis a subtle one, which I will now set forth to explain and make bare. [25: Ibid., p. 162.] [26: Orend, Morality of War, p. 196.] [27: Ibid., p. 35 37. Orend outlines three criteria for a minimally just society. The first criterion is the societys general recognitionby its own people and the international communityas being minimally just. So societies that fulfill this criterion typically are not pervasively criticized by international officials as being unscrupulous or subject to heavy skepticism about its capacity to organize a decent communal life for its members. The second criterion is the societys avoidance of violating the rights of other states, the most easily identifiable case being the commission of aggression. The third criterion is the societys making every reasonable effort to realize the human rights of its populace. ]

II.Like Moellendorf[footnoteRef:28] (and like Walzer[footnoteRef:29] before him), Orend[footnoteRef:30] subscribes, though not explicitly, to a cosmopolitan account of states rights. In its most basic form, it is the view that states have rights only in virtue of those human rights possessed by their inhabitants. A states rights, in other words, are dependent upon, and derived from, those of its populace. This collective manifestation of rights in the state is contingent upon the state upholding the rights of its membersforgoing this, the state loses claim to its rights. This is contrasted to a statist conception of states rights, which is more dated and conservative in character because the state is said to have rights independently from those of its inhabitants. As Moellendorf observes, depending on which view of states rights is acceptedstatist or cosmopolitana just cause for, say, humanitarian intervention, may or may not be permissible. Both he and Orend are advocates of cosmopolitanism, and Orendelaborating and extending this ideaformulates conditions that states must meet in a cosmopolitan society if they are to retain their rights: this is the concept of a minimally just society mentioned above. If a state wishes to retain its rights, then it must be minimally just, or else it has no moral claim against those who wish to intervene into their internal affairs, with a moral mandate to protect and secure human rights. [28: Darrel Moellendorf, Cosmopolitan Justice (Boulder, Colorado: Westview Press, 2002), p. 159.] [29: Walzer, Just and Unjust Wars, pp. 53 54.] [30: Orend, Morality of War, pp. 33 35.]

These rights of the state are commonly conceived as, in the least, the right to political sovereignty, territorial integrity, and resistance against aggression.[footnoteRef:31] Therefore, given all that was said in the above paragraph, when a humanitarian intervention against a state is justified, it is justified because the state no longer has a claim to any of the three rights just listed. To vividly bring out Orends mistake in his account of the grounding of post-war rights and duties, Ill lay out the premises just discussed with reference to the case of Iraq. [31: Orend, Morality of War, p. 37.]

I admit, Orend says, that Saddams regime had no right not to be attacked. It seems as though his regime violated the condition of making every reasonable effort at domestic human rights satisfaction, and therefore lost the rights of statehood, which includes the right not to be overthrown.[footnoteRef:32] Though he admits this, Orend maintains that the plight of the Iraqi people under Saddam does not seem comparable to the humanitarian emergencies of Rwanda in the 1990s and Cambodia in the 1970s; those seemed to require quick and decisive stopping; while for Iraq in 2003, it was not obvious that the humanitarian cause was as pressing, and therefore the question of whether it would be a wise judgment call to intervene is just thata judgment call. He does say that humanitarian intervention was the strongest case for the Iraq War, but fighting for that cause could never justify the war because of the USs originally professed unsubstantiated reason for going: to pre-emptively strike in defense of an anticipated attack by Saddam Hussein.[footnoteRef:33] For Orend, having the right intentionhaving the right reason to initiate the warfrom the start, is essential for the moral integrity of the war; this includes announcing, in advance, the main reason for the war, as well as publicly committing to adhere to the mandates of just war theory, meaning being tempered by the in bello constraints and requirements and of those having to do with eventually terminating the war justly; being unprepared to meet the responsibilities of waging war at the time of its initiation counts as an injustice. Winners, like America over Iraq in 2003, Orend says, should never find themselves in a position where they have won the war but they do not know what to do next, and so start making up post-war policy on the fly.[footnoteRef:34] This is the result of their scatter-shot[footnoteRef:35] approachlisting a host of plausible-sounding reasons for war but never settling on a main or defining causean approach that conveys the impression of being an incompetent statesmen and is therefore irresponsible.[footnoteRef:36] [32: Ibid., p. 97.] [33: Orend, Morality of War, pp. 78 83.] [34: Ibid., p. 164.] [35: Ibid., p. 49. The approach is scatter-shot because, as the name implies, no particular cause for war is targeted as the main, animating reason. Orend observes that the Iraq war was, at one time or another, justified by each of these reasons: 1) Saddam had WMDs, some of which could be deployed within forty-five minutes; 2) Saddam intended to give some of its WMDs to al-Qaeda, for use against America; 3) Saddam was actually involved with al-Qaeda in the 9/11 attacks; 4) Saddam needed to be overthrown as an act of humanitarian intervention on behalf of the Iraqi people; 5) Saddam posed a threat to regional security, especially regarding Israel and the Saudi oil-fields; 6) Saddam kicked out the UN weapons inspectors in 1998 violating the Persian Gulf War treaty, which specified possible violent consequences for doing so; and 7) Saddam needed to be overthrown to create forcibly the first Arab democracy, which would serve as a Trojan Horse for better values throughout the Islamic world. ] [36: Ibid., p. 50.]

I will not be taking a stance on whether the war in Iraq was just or not (though I am inclined to think that, given Saddams unscrupulous and depraved regime, such hostilities were inevitable). Let us entertain, then, the logic of the following premises. In the case of the Iraq war, it is by definition the case that Saddam waged an unjust war against the US: his regime was unworthy of the right not to be overthrown and had no moral right to wage war in defense because of its failure to be minimally just. Thus, either the US war in Iraq was a case of both sides warring unjustly, or not. If neither side was just, thenaccording to Orenda just peace settlement would be, as a matter of principle, impossible; or, as he would say, there could only be injustice after such a war because the injustice of [the USs] cause infects the conclusion of the war[footnoteRef:37] However, as I mentioned earlier in the paper, Orend concedes that moral considerations independent of justicethose aforementioned separate responsibilitiessupply a standard of evaluation for judging the social and political relations within a state and those extending internationally, as better or worse. This fact also implies a standard of accountability for bringing these outcomes aboutwhich Orend alludes to in submitting that the US is accountable for rehabilitating Iraq; yet he is silent on how this could be, given that real post-war duties are supposed to arise from the waging of a just war from the start. I submit, therefore, that the real question about justice after war (lets say with the case in Iraq) is this: By what permissible means is the US to achieveregardless of the wars justicethe bettering of the Iraqi state? In other words, justice after war is just thatthe justice that comes after the war has concluded, after it has been deemed just or unjust: the question of how to realize justice after war must be a live and real question regardless of whether the recently concluded war was unjust. For this precise reason, the question of how to realize justice in the aftermath of war is not the prerogative of just war theory to answer: it only answers the questions of whether a war was justly initiated, justly executed, and justly terminated; the justice of war lies in the ethical practice and regulation of the three activities that constitute it. The practice of restoring and rehabilitating a war-torn society does not form part of the practice of warfare, and is therefore not guided by the normative regulatory principles of warfare, which are jus ad bellum, jus in bello, and jus terminare bellum. [37: Orend, Morality of War, p. 162.]

All this entails a further interesting implication. It is possible for two unjustly warring states to agree to a cease-fire and subsequently agree to a fully just peace settlement. For Orend, this is not possible, because in order for there to be a just peace settlement at the termination of war, there had to have been one state with justice on its side from the start. But this seems implausible, I think, in view of my proposed revision: if we characterize a just peace settlement by the fairness of its terms in view of the weight of justice and injustice on each side, then we can say that, even when a war is unjust on both sides, still, they can come to agree to a fair set of terms in a cease-fire, at least in principle. I say this because, empirically, such a scenario is not likely since the unjust wars would probably be denounced as illegal by the international community, whose members would then therefore have the right to intervene to stop itjustlyand if victorious, then we are brought back to a case where there is justice on one side of the war. In this sort of event, the terms of the peace settlement would be made or overseen not by the unjustly warring states, but by an international body or a unilateral representative of such. We can, however, imagine a case where such just intervention by the international community is not possible. If a war, waged unjustly on both sides, is terminated, the practice of terminating the warwithout the oversight and mandate of a just third-partycould still conceivably be just; what makes it just is having the counting up of injustices on each side fairly factor into the terms of the settlement. Here I agree with Orend that justice comes in degrees, so that one side could be more unjust than the other, which would mean more concessions would be made by the side with a higher degree of injustice. I leave it open to argument whether, say, violations of jus ad bellum are more weighty than those of jus in bello; how to add these injustices up and factor them into the peace settlement appropriately is beyond the scope of this thesis. I submit this as an aspect that requires more conceptual fleshing-out.Now we are ready to turn, finally, to the set of principles that make up jus terminare bellum[footnoteRef:38]. Just as there is a requirement of just cause to initiate a war, so must there be one to terminate it. The most obvious case where a just cause to terminate war is present is when the war has been won, which essentially means that the rights whose violation justified the wars initiation have been victoriously vindicated. In other words, once the just cause for the war has been realized, the justice of war termination requires that the war end. And as mentioned before, wars do, in the vindication of violated rights, aim for a more secure possession of them. This is to say that, in justly terminating a war, the war must end in such a way as to create the conditions for a peace that is more secure than that which preceded the onset of war. A war may also be justifiably terminated if it is likely to fail, or if its continuance could only promise an outcome that is disproportionately good in comparison to the bad effects of waging it. And in terminating war, its assumed that there is an authority that has the power to do so; requiring that the authority be legitimate has some plausibility, for instance, in cases where it might be positively unjust to terminate the war; but, most of the time, no one will listen to someone who wishes to terminate the war that has no authority to do so in the first place. A war also may be justly terminated if an opportunity for diplomatic resolution arises[footnoteRef:39]. There is an important qualification to this criterion that Moellendorf refers to by way of quoting Walzer: It isnt always true that such cease-fires serve the purpose of humanity. Unless they create a better better state of peace, they may simply fix the conditions under which the fighting will be resumed, at a later time and with a new intensity. Not all diplomatic resolutions, in other words, are adequate to justify war termination. So we must ask, what are the considerations that favor seeking a negotiated settlement over a non-negotiated one and vice versa? If an unjustly warring state is sufficiently morally bankrupt and coarse, like Saddam Hussein, it may only be demeaning and degrading to negotiate with him; it also may simply be unwise, for hes likely not to abide by the terms of the settlement in any case. So, taken together, the principles of jus terminare bellum are so far: i) just cause, 2) likelihood of failure, 3) disproportionality, and 4) opportunity for diplomacy. But another is important to mention, and it is political and military trust. Justly terminating war depends on both of these levels, as political leaders must be counted on to abide by the terms of settlement (if there are any) and soldiers must not take advantage of the enemy letting their guard down when hostilities have ceased. Trust strengthens the entire system of normative regulation of warfare, and helps to further peace not only immediately after war but for future wars as well; so on consequentialist grounds, trust is an important criterion for import. Just reflect on how difficult it would be to terminate war if no one actually believed that the fighting would stop after a settlement had been made. Its not only powerful in terms of consequences, however; to lie and to breach a settlement in order to swindle ones enemy is wrong regardless of the consequences. [38: Remember from earlier in the paper that this is essentially Moellendorfs account of jus ex bello. He, however, frames his principles in terms of justifying the continuance of war. I frame the same principles negatively in terms of what would justify, not the wars continuance, but rather its termination. So I take it that, in general, if one is justified in terminating war, then one is thereby unjustified in continuing it, and vice versa. However, exceptions to this are possible. ] [39: ]

The application of these principles can become more complicated, however, in a situation where the just termination of war itself causes an injustice to arise as a consequence of ending it. Imagine, for instance, that the US would be justified in terminating its war in Iraq, say, because it could no longer afford fighting Saddam, who nevertheless was significantly weakened by the US bombardment. But now with the US planning to leave, and with Saddam weakened, his rivals and enemies within and around Iraq see an opportunity to try and seize power and thereby a civil, sectarian, ethnic, and/or regional war ensues. Now, because (well say) in this case the USs war was justified by a cause for humanitarian intervention, this means that, in terminating their war and leaving, they must do their best to mitigate the injustice in failing to realize the just cause of humanitarian intervention. As Moellendorf says, Because the war satisfies the principle of just cause, the process of withdrawing troops requires balancing the moral requirement of not extending an unjust war against the requirement to mitigate the injustice that cannot be remedied.[footnoteRef:40] Hence this means, in more concrete terms, that the military aims must become more modest in comparison to the formerly stronger aims which were set in order to realize the just cause in fulllike, for example, seeking merely the protection of the Kurd minority rather than, more strongly, seeking the ousting of the regime and the sources of hostility that threaten them. [40: Moellendorf, Jus ex Bello, p. 135. ]

In summation, then, I shall review what has been argued for thus far. There is first the issue of how to understand the tripartite structure of just war theory as well the purpose of the theory itself. The waging of war, I have said, consists in three distinct activities, each with their own set of regulatory principles and precepts. Jus ad bellum for the initiation of war, jus in bello for the execution of war, and jus terminare bellum for the termination of warthis, Ive argued, is a conceptually complete account of what is involved in waging a just war. I then went on to show that jus post bellum, most ardently and sophisticatedly explicated by Orend, is consequently left without a place in just war theory. This is because it provides a view of what rights and duties states have to each other after war has been concluded, rights and duties the discharging of which constitutes an activity quite distinct from waging war, and therefore requiring a likewise distinct set of ethical criteria separate from those that regulate the practice of warfare. Ive attempted to show that Orend comes up against this very fact and, as a result of his account, contradicts himself, or at least stumbles into inconsistency. This was illustrated I think rather plainly in how Orend admitted that, despite the US not having justice on its side, it still retained duties to aid in the rehabilitation of Iraqa position that is clearly ruled out by his own contention that there can only be duties of justice postwar in the event of a war justly waged; I therefore disagree with his assertion that each phase of warthe initiation, execution, and terminationare intimately bound together in such a way that were a war to be initiated unjustly, the practices of executing and terminating would necessarily be unjust as well. To the contraryIve attempted to show that a war can be terminated justly even in a case in which it was unjustly initiated. If this is all right, then I have dismantled the tripartite version of just war theory proposed by Orend and thus have reopened the question of how to understand the moral basis for the rights and responsibilities we think states sometimes possess in the aftermath of war.

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20Brian S. Gallagher