Ethics Beyond War's End

3. Jus Ante and Post Bellum: Completing the Circle, Breaking the Cycle

c h a p t e r 3 JUS ANTE AND POST BELLUM Completing the Circle, Breaking the Cycle george r. lucas jr. Just Wars and Irregular Wars Nature offers two versions of what the noted astronomer Sir Arthur Eddington called the ‘‘arrow of time’’—namely, physical processes that are either irreversible or reversible. Irreversible processes embody the linear vector that Eddington himself had in mind with this phrase. They are linear in that they have a definite temporal direction, a concrete origin, some well-defined temporal duration, and a terminus, and, consequently (as the eminent English-American philosopher A. N. Whitehead put it), a ‘‘perpetual perishing.’’ Indeed, as Whitehead remarked, ‘‘time itself is a perpetual perishing’’—a metaphor that seems especially apt for war.1 But nature also exhibits other processes that are enduring, repetitive, cyclical, ongoing, and hence reversible. Temporally speaking, as the equally eminent German philosopher Hegel observed regarding their circularity , these processes ‘‘have no beginning and no end,’’ a metaphor that, in darker moments, seems equally apt for war.2 War presents itself as linear: a vector with an origin, a duration, a terminus, and with damage done over its temporal duration that often seems irreversible. War’s effects cannot be undone, and in that sense they seem linear. But wars that do not end well threaten to beget new wars that, as progeny of the old, perpetuate a cycle of violence and destruction that is unending. It is that 47 48 george r. lucas jr. never-ending cycle of violence that poets and theologians have lamented since antiquity.3 The justification of war follows (or seems to follow) the logic of linearity and irreversibility. Historically, that logic pronounces on war’s origins and on its finite duration, constraining the permissible actions of its participants . The first set of these concerns is directed primarily toward political leaders and policymakers concerning when, if ever, it would be permissible to resort to war in defense of a nation or, more troublingly, to further its political objectives or resolve its conflicts with adversaries (jus ad bellum). The second, somewhat less systematic question is addressed primarily to military leaders and military personnel empowered to wield the sword in pursuit of their nation’s policies and objectives. It concerns the limitations or constraints on their behavior, particularly the specific means and manner in which they may or may not be permitted to resort to the use of deadly force during wartime (jus in bello). Precisely because it is composed of specific and contextual advice, rather than abstract principle , jus in bello has been somewhat haphazardly and unsystematically enshrined in treaties, conventions, and otherwise in the settled customs or traditional practices within the profession of arms.4 Until recently, however, explicit attention was less often paid to war’s ending and aftermath (jus post bellum), or, apart from those ancient lamentations , to its tendency to perpetuate an unending cycle of violence. Only within the past decade, in fact, has a third mode of discussion emerged, grounded in more careful attention to specific details of proposals that were heretofore taken merely as statements in opposition to war (as well as expressions of profound dissatisfaction with just war doctrine itself ) by the German Enlightenment philosopher Immanuel Kant.5 Attributed primarily to the careful analysis of Kant’s specific pronouncements on war by Canadian scholar Brian Orend, what is now widely termed jus post bellum concerns how wars are to be justly concluded, how peace is to be made, treaties negotiated, reconciliation affected, responsibility affixed, punishment administered or amnesty granted, and especially how devastated victims and nations are to be reconstructed and rehabilitated , all (in Kant’s systematic vision) in order to make future wars less likely.6 Not surprisingly, the rise of interest in jus post bellum is concurrent with the rise to primacy of irregular warfare (or hybrid war) in this century , a development that further complicates all the foregoing traditional jus ante and post bellum 49 demarcations.7 The Swiss jurist and political philosopher Emer de Vattel was responsible for this nomenclature, and it was meant to call attention to a departure from the norm of war as addressed in law.8 Regular warfare (guerre réglée) consists of armed conflict between the uniformed military representatives of established nations, carried out according to natural law or sanctioned custom.9 It is that which international law, including the Law of...