Jus Post Bellum—Seeking Peace in Iraq

[1] On January 26, 2007 Bishop Mark S. Hanson called the Evangelical Lutheran Church in America (ELCA) to conversation on Iraq: “Our country is engaged in a divisive debate about the nature and the direction of this war… As the war in Iraq escalates and the way to a lasting peace seems unclear, how shall the members of the church respond?” (Hanson 2007). The war has been controversial from the start. Four years later the U.S. remains mired in Iraq. Violence continues on a daily basis and despite escalation in the war effort, nothing seems capable of containing it. The intelligence cited as the reason to go to war has been discredited, and the conduct of the war is widely considered to have been incompetent. Public opinion of the war and its conduct has turned against the U.S. both domestically and abroad. The political dialogue in the U.S. has polarized, with one group supporting the continued escalation and the other advocating a timetable for withdrawal. Neither approach properly deals with the ethical issues present.

[2] This article will consider the ethical issues facing our nation as we deliberate a way to end the war in Iraq. Lutherans have a long tradition of respect for just war theory, often called by its Latin name, jus ad bellum (ELCA 1995). Many credit jus ad bellum to Augustine, who synthesized values of Aristotle and Cicero with Christian principles. Over the centuries, jus ad bellum has become commonly accepted as the standard for international ethics in the conduct of war. Many of the concepts of jus ad bellum have been incorporated into international laws governing conflict, such as the United Nations Charter and the Geneva and Hague Conventions. Jus ad bellum led to jus in bello-just conduct of war, and to jus post bellum-just post-war conduct. Considering just war traditions as set forth in these three components of just war theory, this paper will attempt to discern the ethical principles that should guide us as we seek to end the war in Iraq.

Jus ad bellum
[3] Jus ad bellum addresses the decision to begin a war. The leading modern sectarian scholar of just war theory is Michael Walzer, who’s Just and Unjust Wars follows tradition in setting forth six requirements, each of which must be met before a state is justified to resort to armed force (Walzer 2000).

A. Just Cause.
War can only be started for the right reasons, that being to confront a real and present danger. Most modern just war scholars look to the resistance of aggression as being the only just cause. Other just causes frequently mentioned include self-defense from an external attack, defending others from attack, protecting innocent people from brutal regimes, and punishing grievous wrongdoing which remains uncorrected (Orend 2005).
B. Right Intention.
Right intention flows from just cause. A war must be intended only for the reasons set forth as a just cause (NCCB 1983). Ulterior motives, such as the desire to secure resources or power, or seek revenge or ethnic prosecution, are prohibited. A war that is legitimate because of just cause and proper authority can have that justification undone by a “wicked intention” (Williams and Caldwell 2006).
C. Proper authority and public declaration.
War must be declared by those with responsibility for public order, not by private groups or individuals. Whether the United Nations must provide proper authority for war is not universally accepted, although commonly sought.
D. Last Resort.
War must be the last resort. That is, all peaceful alternatives must be exhausted before a state resorts to violence. Once war begins, peaceful alternatives evaporate.
E. Probability of Success.
A state may not resort to war if doing so will not improve the situation. This is often a difficult rule to apply because while military objectives may be easily attained, the ability to improve the situation may be less clear.
F. Proportionality.
The damage to be inflicted and the costs to be incurred must be proportionate to the good expected from the outcome of the war (NCCB 1983). The military objective of removing Saddam Hussein from power was easily achieved, yet the enormous cost and damage after the initial military success were not anticipated.

Jus in Bello
[4] Jus in bello deals with the conduct of war once it has commenced. Most of the principles of jus in bello are incorporated in international treaties and other forms of international law. The rules were designed for wars fought between uniformed armies, and their application to the war on terrorism is often difficult. There are six principles widely accepted for jus in bello.

A. Discrimination and Non-Combatant Immunity.
Modern war tends to have more civilian than military casualties. Soldiers are required to target only combatants, yet some civilian casualties are unavoidable.

B. Proportionality.
Soldiers may only use force proportionate to meet the objectives. The rule is intended to prevent unnecessary damage to property and loss of lives because of the excessive use of force. The conditions in Iraq indicate that proportionality also requires the combatant to use sufficient force to make certain the objectives can be achieved with reasonable probability. The Bush administration has been criticized for deploying sufficient force to topple the Saddam Hussein regime, but inadequate force to secure the peace.
C. Obey all international laws on weapons prohibition.
The Iraq war started over allegations that Iraq would soon use weapons of mass destruction, but these were not used, nor found.
D. Benevolent quarantine for prisoners of war (POWs).
This rule is being applied with great difficulty in the war on terror. The indefinite confinement and aggressive interrogation of enemy combatants is argued by some to be a violation of the principles of jus in bello.
E. No Means Mala in Se.
Soldiers may not use weapons or methods which are “evil in themselves.”

F. No reprisals.
Reprisals happen when one party breaks the rules to punish the other party for doing so. To a certain extent, jus in bello violations are to be expected in war. As Christians, we recognize that the sinfulness of humans makes consistent good behavior impossible.

Jus post bellum Theory
[5] Just war theory has always had a component that deals with the post-war stage of conflict-jus post bellum. It has been much less developed than the ad bellum and in bello parts of the theory (Rodin 2006), yet it has been developed because of the need to end wars completely and fairly. Brian Orend, a leading scholar of jus post bellum theory suggests the following principles:

A. Proportionality and Publicity.
The peace settlement should be measured and reasonable, as well as publicly proclaimed.

B. Rights Vindication.
The settlement should secure those basic rights whose violation triggered the justified war.

C. Discrimination.
Distinction needs to be made between the leaders, the soldiers, and the civilians in the defeated country one is negotiating with.
D. Punishment.
The leaders of the regime should face fair and public international trials for war crimes and punishment proportionate to their crimes. Soldiers, from all sides to the conflict, must be held accountable to investigation and possible trial for war crimes committed.
E. Compensation.
Financial restitution by the belligerent may be mandated, subject to both proportionality and discrimination.
F. Rehabilitation.
This controversial principle considers that it is permissible to reform decrepit institutions in the aggressor regime. Such reforms must be proportionate and be designed to restore basic human rights (Orend 2005).
A problem with Orend’s principles is that they are extraordinarily difficult to apply to the conflicts of today. Wars today are not like the wars of the past, where uniformed soldiers fought for identifiable governments and wars ended with a ceremony on the deck of a battleship. In the case of Iraq arguably all of the combatants have fought an unjust war, and the principles need to be applied mutatis mutandis.

[6] Rear Admiral Louis V. Iasiello, a Navy Chaplain, has developed a framework for jus post bellum focused on developing a healing mindset (Iasiello 2004). He says that defeat carries with it a trauma that is experienced on many levels, personal, familial, communal, societal, national, and international. It is constructive if all parties enter into the “post-conflict stage in a spirit of regret, conciliation, humility, and possibly contrition.” Iasiello sets forth three phases to a just restoration:

A. Protectorship.
This phase is marked by efforts to provide security for both the occupying force and the defeated society.

B. Partnership.
At this phase, all sides work together to rebuild the defeated society. Iasiello indicates that by the time the transition to this phase takes place, the parties should enjoy some meaningful level of trust and goodwill.

C. Ownership.
This phase marks the final stage in the just restoration of a nation-the return of its sovereignty and reentry into the community of nations.
[7] Iasiello’s conceptual framework for developing a healing mindset is sound and his observation about the need for a “spirit of regret, conciliation, humility, and possibly contrition” has great application in the Iraq situation. His three-phase framework might have worked if sufficient force had been deployed to secure the peace and in the process some level of trust and goodwill between the United States and Iraq had developed. The spirit of repentance that underpins his framework was simply not present on any side of this conflict.

[8] Glen Stassen does not specifically address jus post bellum in his theory of Just Peacemaking that mediates between just war tradition and pacifism, yet Just Peacemaking has great application. Stassen roots his theory in the Sermon on the Mount. Just Peacemaking involves seven steps:

Affirm common security partnerships with our adversaries and build an order of peace and justice that affirms their and our valid interests.

Take independent initiatives directed towards transforming the reaction of the adversary.

Talk with your enemy; seek negotiations, using methods of conflict resolution.

Seek human rights and justice for all, especially the powerless, without double standards.

Realistically acknowledge the vicious cycles we are caught up in, and our need to participate in a realistic peacemaking process.

Instead of judgmental propaganda, we can acknowledge to others that we have caused hurt and want to take actions to do better.

Participate in groups with accurate information and a voice in policy-making (Stassen 1992).

A Lutheran Jus Post Bellum
[9] Article XVI of the Augsburg Confession, which declares that “Christians may without sin…engage in just war, serve as soldiers…” reflects the church’s understanding of war. Just war tradition sets forth the criteria under which a particular war should be judged as just, with the reminder that these criteria were “understood not as justifying war per se but as giving criteria by which to evaluate the justice or injustice of a particular war”(ALC 1966).

[10] Just war theory for Lutherans has always been rooted in Luther’s theology of the two kingdoms. It reflects a “tension between Christ’s rejection of violence in the Sermon on the Mount and those passages in Scripture that admonished obedience to secular governments” (Romans 13:1-2; 1 Peter 2:13-14) (Johnson 2003). Luther’s left hand, or temporal kingdom, is the means by which God orders the earthly world. The right hand, or spiritual kingdom, is how God orders his spiritual kingdom. “Christians recognize both the goodness and limits of earthly peace. Earthly peace is not the same as the promised peace of God’s present and future eternal reign” (ELCA 2004). Earthly peace is often fleeting and always partial. We must always be cognizant of the persistent, pervasive, and subtle power of sin.

Applying Jus Post Bellum to Iraq-Principles for a Just Withdrawal
[11] The political debate over Iraq has become so polarized that the discussion has lost touch with reality. All sides to the debate have become so focused on advancing their own positions that they are unwilling to find common ground. The first step in finding just cause for a withdrawal strategy is to develop a war termination vision. That vision will establish the right reasons for ending the war, and end the judgmental propaganda that has poisoned any attempt at a reasoned and just approach. We must recognize that no solution to the situation in Iraq will result in total security. Those who seek such a solution are likely to become “agents of arrogant pride and the injustice and insecurity that flow from pride. If they are to secure freedom for vulnerable people, governments must recognize their limits in providing security” (ELCA 1995).

Just Cause and Right Intention
[12] The foremost objective in any just withdrawal must be the restoration of human rights. A decision on whether to stay, to escalate, or to withdraw must have as its primary objective the restoration of the human rights of the victims of the war. Actions to terminate the war, or to continue the war, are just only if the actions have as their primary purpose the restoration of the human rights of the victims.

[13] Classical just war theory assumes a clear distinction between the victims of war and the oppressors. The arguments for the war point to the victims being the American public (and by extension the world’s people) and the Iraqi people, with the aggressor being the Saddam Hussein regime. The unfolding of the war has identified more aggressors-Sunni and Shiite militias, neighboring states, and some would say members of the Bush administration. A just war termination vision would look to restore the human rights of all people from injustice from any of these aggressors. The complexity of this puzzle will make it a very difficult problem to solve.

[14] The restoration of human rights is a process of healing. Healing can start with repentance. Americans can start the process of healing by acknowledging that we have caused harm in Iraq and that we sincerely want to do things that will make the situation better. “Unacknowledged guilt is not merely a moral sin but also, objectively seen, a powerful barrier to reconciliation” (Stassen 1992 p. 107). The first step to take here is to end the judgmental propaganda that poisons the dialogue.

[15] The present dialogue has become a battle of slogans. While they may have political effectiveness in their simplicity and appeal to base groups, they encourage a serious misrepresentation of reality. The bumper-sticker slogan of the “War on Terror” is often invoked to discredit any attempt to disagree with Administration policies. Other arguments misstate the issue-“Support the troops” is used to justify continued escalation in Iraq, as if the only way to support troops is to engage them in combat.

[16] A common argument of the Bush administration and its allies is that we can either “fight them there or fight them here.” The logic of that statement is questionable. Do we really expect that we will defeat the terrorists in Iraq to the point where they are incapable of mounting a terrorist attack In the United States? Even if the statement is accurate, is it moral to make the decision where to fight? Wherever the war is fought there will be innocent civilian casualties. Deciding to fight terrorists in Iraq means that Iraqi civilians are being valued less than American civilians. Do we have the right to make that decision in our obvious self-interest?

[17] The decision on how and when to begin a withdrawal is significantly contentious. Those who favor withdrawal have been accused of “cutting and running”-following a cowardly and disgraceful plan for exit. Others fear the consequences of a withdrawal: “If when we go, we leave behind nothing but a failed state and chaos, the consequences will be disastrous for the region and for America’s position in the world” (Kissinger 2005).

[18] We must be careful as we consider options that we make certain our intentions are moral. Complacency and wishful thinking endanger peace; pride and self-righteousness endanger peace as well (ELCA 2004). A decision to continue the conflict should not be made for reasons of pride or protecting one’s legacy. Some have argued that we must stay until we win in order to maintain America’s status in the world. “Defeat would shrivel American credibility around the world” (Kissinger 2005). To the extent that sustained American power and credibility will lead to future peace in the world, this argument may have moral traction. However, the potential rooting of this argument in pride and self-righteousness should make us very cautious about its application.

Proper Authority
[19] Should the United States alone make the decision on when to end the war? I believe that because the United States relied on the United Nations to justify the war, they are obligated to seek the guidance of the United Nations in ending it. Many American’s view U.S. participation in the United Nations to be a waste of time, and an erosion of American sovereignty. The United Nations remains the best chance for providing proper authority for just war decisions, and the United States should make every effort to make it effective.

[20] In any event, a unilateral decision on Iraq would be wrong. The United States should involve regional countries and the Iraqi sects in the decision as was recommended by the Iraq Study Group. Glen Stassen’s Just Peacemaking step of talking to the enemy, seeking negotiations, and using methods of conflict resolution is the only ethical course (Stassen 1992).

[21] Underpinning American authority for participation in the peacemaking process should be the willingness to seek accountability for all who have committed violations of just war principles. Ideally this would be conducted under international authority, such as by The Hague Court. However, this would likely prove extremely divisive within the United States, possibly to the extent of jeopardizing other important international initiatives. Accordingly, the best course of action may be for the United States to conduct a thorough and transparent review of American conduct of the war, starting with the decision to go to war. Based on the seriousness of any violations that are found, appropriate penalties should be imposed. In part, this process began with the 2006 elections where certain legislators were turned out of office by a public seeking accountability.

Potential for Success
[22] Actions that are taken to end the war must be first assessed for the probability of their success. Actions must not be taken if they do not increase the possibility of peace. This will often be very difficult to assess. However, the difficulty in assessing the potential of alternatives does not justify maintaining the status quo, particularly where the status quo is likely not to result in peace. Any solution to the problem in Iraq will likely involve considerable risk, and an objective analysis of the potential for success of alternatives is necessary.

[23] One major criticism of the conduct of the war in Iraq is that inadequate force was used to secure the peace. According to the Cato Institute, this is the first war in the history of the world that was accompanied by a tax cut. Peace in Iraq is likely to be a long, expensive undertaking, and it is important that the expenditure is adequate to do the job. The issue of financing the war and reconstruction must be addressed, since the present approach puts an unfair burden on future American generations. The sharing of costs between Iraq and the United States should be determined under the oversight of the United Nations.

[24]The most serious question of proportionality may be the determination of whether the certainty of the present situation creates proportionally more risk than the possibility of genocide upon withdrawal.

Last resort
[25] The just war doctrine of last resort leads to the conclusion that every action which puts more lives at risk must be taken only if it is the last resort for peace. Our objective in winding down the war must be based principally on avoiding further harm. Every decision to escalate or continue the war must be based on this principle. That means we need to establish clear objectives for our actions, and have benchmarks against which our actions can be measured. We must always be testing alternatives, and testing our assumptions about the consequences of those alternatives.

[26] Few would argue that Iraq posed a clear and present danger to the United States when the war began in 2003, but there is little question that it is now a serious and imminent threat to America. This threat will be difficult to defend against. Serious damage has been done to American credibility and power in the world. The American military has been stressed and may be unable effectively to serve its role in securing world peace. The American public has been polarized, and serious damage has been inflicted on the U.S. Constitution. Iraq has been devastated, and the entire Middle East is much more dangerous today than it was in 2003. Resources have been diverted from the war against terrorism, and the United States is less safe.

[27] There will be no easy solution to these problems. America has a moral commitment to a just withdrawal from Iraq. Our actions in withdrawal must meet the criteria of just war theory-most significantly, we must take actions that will lead to healing-healing of relationships among Iraqis, among Americans, between the United States and the international community, and between Islam and Christianity. “Blessed are the peacemakers, for they shall be called sons of God” (Matthew 5:9).


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