Jus Post Bellum Symposium: The Responsibility to Protect, Jus Post Bellum, and the Duty to Rebuild After War

by James Pattison

[James Pattison is a Senior Lecturer in Politics, University of Manchester.]

It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty on the responsibility to protect (R2P). But who has the responsibility to rebuild? So, for example, who should rebuild Libya, Mali, and Afghanistan? Should the U.K. and U.S. have been tasked with rebuilding Iraq, given that they fought the war, or were other states, such as France and Germany, morally required to help rebuild Iraq, even though they didn’t take part in the war?

As I discuss at greater length in a forthcoming article in the British Journal of Political Science (on which this blog draws), some have offered an (often implicit) assignment of the issue of who should rebuild. In particular, many leading advocates of the relevance of jus post bellum for Just War Theory (such as Gary Bass) hold what we might call the ‘Belligerents Rebuild Thesis’. This asserts that those who have been involved in the fighting should be tasked with the duty to rebuild. This is often asserted about the unjust aggressors: they should rebuild after to repair the mess that they have caused. This was a claim that was frequently made in the aftermath of the 2003 War in Iraq. For instance, Colin Powell purportedly claimed ‘you broke it, you own it’. But it may also be applied to the victors in general, regardless of the justice of their war in terms of the principles of jus ad bellum. For example, the victors should rebuild to ensure that the basic needs of those in the defeated belligerent are met. But it’s perhaps more often defended for those that fight just wars, such as those that undertake just humanitarian interventions. For example, Michael Walzer argues that

Once the Vietnamese had sent an army into Cambodia, for the best of reasons, to save lives (whatever their other reasons), they were bound to keep on saving lives in Cambodia. They had to secure and maintain some kind of law and order and establish a nonmurderous government to replace the one they had overthrown.

There are several problems with this view, that is, the Belligerents Rebuild Thesis. The first is that the belligerent may not be the most suitable agent to rebuild. This is perhaps most obvious when it has fought an unjust war. For example, its post-war occupation may be heavily opposed by the local population leading to a reigniting of the conflict. This point can be made more precisely: the belligerent may not have the (i) right to rebuild. They might, for instance, be likely to do a very poor job of rebuilding. But, even if belligerents have the right to rebuild in certain cases, it doesn’t follow that they are likely to have the (ii) duty to rebuild. Other agents may be better able to carry out the rebuilding than the belligerent.

But why does the Belligerents Rebuild Thesis seem so popular? What lies at the heart of its intuitive appeal is that belligerents sometimes possess duties of reparation, by which I mean duties to redress the wrongdoing for which they are morally culpable. But duties of reparation are of limited relevance for the issue of who should rebuild. It may be difficult to trace causally which agents were the belligerents—and so owe reparative duties—and there might not always be left belligerents to which to assign the duty rebuild. For instance, a war between two statist parties may be so acrimonious that the institutions of both states no longer function. Alternatively, especially in the case of a non-state war, the belligerent (for example, a guerrilla movement) may no longer exist after the war.

The second problem with the Belligerents Rebuild Thesis is that it seems unfair in cases when the belligerent has fought a just war. Such a belligerent has done nothing wrong that means that they, rather than anyone else, should bear the costs of rebuilding.

Third, and related, the Belligerents Rebuild Thesis wrongly excludes non-belligerents from the rebuilding process. Non-belligerents (for example, the UN) may sometimes be required to rebuild since they are best placed to do so. In fact, if the Belligerents Rebuild Thesis is premised on the claim that ‘you broke it, you own it’, it seems to be too narrow, since certain non-belligerents may have also been culpable for the war, such as those that finance the war and provide military equipment.

The fourth problem is that it may have problematic consequences for future wars. If it were required of just belligerents that they have to rebuild the other party after the war simply because they are a belligerent, this may discourage potential future just interveners and defenders from launching their wars.

Instead, I’ll now briefly suggest that there exists an international, collective duty to promote and to establish just political institutions, which translates into a duty to rebuild for the most justifiable rebuilder.

An International Duty to Rebuild

Why is there this duty? It stems from a ‘Natural Duty of Justice’ to promote and to establish just political institutions, as presented by John Rawls and Allen Buchanan. If we accept certain natural duties of justice, such as to establish just political intuitions, which there is a strong case for if one is committed to moral equality, then it seems that there is a duty to rebuild. The international duty to rebuild after war involves an important set of cases for this duty–—that is, where just post-war political institutions do not exist.

In fact, the duty to rebuild after war seems to be one of the most important implications of the Natural Duty of Justice for two reasons. First, post-war societies may comprise several of the cases in which societies lack just political institutions. Second, the strength of the Natural Duty of Justice may be much greater in cases of the duty to rebuild because war-torn societies (for example, Somalia) sometimes have no effective political institutions, let alone just ones. It may be even more morally urgent to address anarchy and to establish basic order than to put in place just institutions where there are currently unjust ones.

Assigning the Duty to Rebuild

So, there’s an international, collective duty to promote and to establish just political institutions. But who should act upon this duty and deliver the duty to rebuild? To answer this question, it helps to consider two central issues: (i) which agent has the right to rebuild and (ii) which agent has the duty to rebuild.

To have the right to rebuild, agents must have just cause for rebuilding. Their rebuilding must be likely to be reasonably effective. And, it helps their justifiability if they are representative of the opinions of those in the political community that they are rebuilding on the means, methods, and goals of the rebuild. For instance, if those in the political community don’t want their community to be rebuilt by the agent or in a particular way, the agent should respect these wishes. They also should have a suitable intention and be authorised by the appropriate international political institution. This account of the conditions to have the right to rebuild will potentially shrink the possible pool of rebuilders. Within the remaining pool of agents–—all of which would meet these conditions–—who has the duty to rebuild?

The duty to rebuild should fall on the potential rebuilder whose rebuilding is likely to be most morally justifiable, which will turn on the likely capability of the rebuilder. To that extent, amongst those that have the right to rebuild, it should often be the most capable rebuilder that rebuilds.

What does this mean in practice? Who should actually rebuild? I can’t offer a full account of this here, but I’ll offer some brief remarks. First, there should be a presumption against the belligerents rebuilding. Instead, it seems that the rebuilding process shouldn’t only be authorised by the UN (that is, by the Security Council), but also generally be carried out by it (for example, by UN peacekeepers or a UN transitional administration). The UN, despite notable flaws, seems generally (if not always) best placed to rebuild in the most justifiable manner for several reasons. But all current potential agents have several pretty serious deficiencies; there needs to be significant reforms to our rebuilding architecture. There might be the case for a stronger UN Peace-building Commission to be able to handle all cases of post-war rebuilding fully justifiably that, for example, has improved coherence and coordination, and is very well resourced.

It seems that we have a duty to carry out such reforms. If the responsibility to rebuild requires a stronger UN system for rebuilding so that the responsibility to rebuild can be properly realised, there is a further duty of justice to act upon this. So, there is a duty to build an international institution in order to fulfill the duty to rebuild.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-responsibility-protect-jus-post-bellum-duty-rebuild-war/

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