Jus Post Bellum Symposium: Jus Post Bellum and the Ethics of Care

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.]

Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the law on the use of force and intervention, jus post bellum is grounded in both moral (e.g., ‘principles of humanity’, ‘dictates of public conscience’) and legal considerations. The two are often portrayed as in conflict with each other.

In just war theory, the concept has been traditionally linked with ‘judgment’ of conduct in international society (e.g. fairness of behavior, sustainability). In his ‘After War Ends’, Larry May has offered six jus post bellum principles that he considers as ‘primarily moral norms’: (i) rebuilding, (ii) retribution, (iii) restitution, (iv) reparation, (v) reconciliation and (vi) proportionality. They are framed as ‘obligations’, but are approached with caution by lawyers, since they are based on an abstraction of context-specific legal norms and principles or de lege ferenda considerations.

Lawyers have typically remained skeptical of the role of morality and ethics in their theorization of jus post bellum, partly based on risks of instrumentalization and abuse of authority. For centuries, discourse on jus post bellum has been dominated by claims over rights and duties of victorious states, entitlements after war and post-war justice. In the 20th century, approaches towards fundamental concepts (e.g. ‘punishment’ of states, ’occupation’) have changed through the increasing concern of international law with peoples’ and individual rights. A nucleus of legal principles is developing incrementally through practice and lawmaking in different areas, such as peace treaties (see e.g., Christine Bell pp 191-204, Jennifer Easterday, pp 379-412), peace operations (Dieter Fleck, pp 43-57), (post-) occupation law (see e.g,. Adam Roberts, Kristen Boon, Yael Ronen, pp. 428-445), international criminal justice (Fréderic Mégret, pp. 519-541) and statebuilding practice (Matthew Saul, pp. 447-464). One of the deficits of modern jus post bellum principles (e.g. accountability, vetting, reparations) and approaches to peacebuilding is that they are often presented in technical labels (‘rule of law’, ‘capacity-building’, ‘civil administration’) that mask their normative agenda or try to foster acceptance through reliance on ‘global community’ standards.

This trend is artificial and detrimental to the development of jus post bellum. The concept offers not only criteria for the evaluation of behavior (e.g., legality or morality of acts and/or omissions), but is geared at facilitating and guiding ‘choices’ in transitions. Such ‘choices’ require normative grounding, justifications and a moral stance that goes beyond legal rules and standards. Some rules and legal regimes in the areas of justice (‘principle of legality’), governance (‘political participation’) or human rights (property, reparation) require adjustment in order to accommodate the specific tensions inherent in the management of transition from conflict to peace (e.g., via targeted accountability, provisional centralization of authority, mass claim mechanisms). Moreover, the very meaning of what is ‘just’, ‘fair’ or conducive to societal peace in a specific context emerges through discourse and processes of interaction (e.g., demonstration and contestation) and is shaped by ‘institutional’ ethics and individual decision-making processes that cannot be seen in isolation of the law.

In the past decade, the turn to ethics under jus post bellum has gained a new turn with the focus on ‘sovereignty as responsibility’ under the Responsibility to Protect (R2P) which emerged as a modern extension of just war theory after Kosovo. The association of post-conflict responsibility with legal duties of reconstruction or rebuilding after conflict’ has created anxieties and fears among states. This has led to a marginalization of the ‘responsibility after conflict’ in UN practice (e.g. ‘Implementing the Responsibility to Protect’). Where ‘responsibility’ is invoked in public and legal discourse, it is typically conceptualized through the perspective of the agent (wrongdoing, causality) or the exercise of control (e.g. the Pottery Barn rule ‘If you break it, you own it’), as demonstrated in Iraq and thereafter. The inadequacies of this approach have been criticized by others, such as James Pattison, who suggests a ‘capacity’-based model (here) that might have some parallels with the ICJ’s approach towards prevention in Bosnia and Herzegovina v Serbia and Montenegro (para. 430).

One way to re-think this ‘responsibility’ dilemma that has not received enough attention in jus post bellum is the concept of the ethics of care. The theory of ‘care’ offers an alternative normative grounding for responsibility than rationalist accounts (e.g., power, influence, interests etc). It shifts the attention from the ‘agent’ to the ‘other’, and provides a ‘relational account’ between actors, based on ‘need’, ‘empathy’ and concern. The connection between ‘care’, morality and modern accounts of responsibility has been drawn by various scholars  (see e.g., Virginia Held, in relation to international law; Louise Arbour and Craig Barker, in relation to R2P; and Signal Ben-Porath in relation to jus post bellum). This argument takes into account the interdependence between agents and subjects of protection, and places greater attention to the needs of individuals, their treatment as subjects rather than objects, and the relationships arising through the assumption of agency in international action. This care-based approach is often discarded as a utopian project. I would argue that it deserves greater space in the theorization of particular areas of jus post bellum.

Many of the existing humanitarian norms guiding intervention and armed force assume the existence of a relationship of ‘care’. Care is a fundamental prerequisite of the ‘precautionary’ principle. Duties of care have been identified as an essential element of the application of R2P (‘Responsibility while Protecting’). Arguments of ‘care’ inform the interpretation and application of certain normative concepts under the law of armed force, such as ‘necessity’, ‘proportionality’ or ‘humanity’. These principles reach beyond warring parties, apply both during armed conflict and in post-conflict contexts and entail duties of care for the aftermath of conflict. The regime governing the protection of the environment (see Cymie Payne, pp. 502-518) is a paradigm example. It encompasses a duty to remedy violations irrespective of the legality of conduct or intended harm.

Many fundamental aspects of peacebuilding cannot be explained without the existence of relationships of care. The concept of ‘care’ is an inherent element of the justification of the exercise of public authority over foreign territory. It underpins the legitimacy of ‘trusteeship’ under the law of occupation or idea of ‘caretaker’ government under international administration. The ethics of care require agents to justify for whom they exercise authority, and to test whose consent (Aurel Sari, pp. 467-501) matters. Moreover, they determine fundamental parameters of ‘exit strategies’ (see Dominik Zaum, pp 334-344), such as the balance between continuing commitment and the necessity of disengagement of international actors.

The need to frame responsibility through ethics of care is reflected in regulatory practice. In past decades, there has been a significant rise in the development of ethical principles, code of conducts and informal instruments (Geneva Call, ‘Ruggie’ principles) determining the conduct of individual actors (e.g. UN personnel, non-state actors companies) in conflict and post-conflict environments. They rely on the ethics of care and are necessary to translate abstract obligations into tangible guidelines for action. Rather than denying the space of the ethics of care in international law and the development of jus post bellum, we should embrace it.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-jus-post-bellum-ethics-care/

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