The Just War Theory is a centuries-old set of principles that provide objective norms for the moral evaluation of war. With each new technological advance or new kind of warfare the just war theory has evolved in order to remain relevant. In the wake of the most recent conflicts in Iraq and Afghanistan, it is time again to re-evaluate the theory. In particular, a new type of military ordnance, depleted uranium shells, require that just war theory be broadened beyond the traditional categories of jus ad bellum (which addresses when it is justified to go to war) and jus in bello (which concerns ethical behavior in warfare) to include jus post bellum, responsibilities once the fighting has ended.
Depleted Uranium Shells
Traditional just war theory considers events leading up to combat and behavior on the battlefield, and suggests that the moral obligations of the warring parties dissipate with the smoke of the battlefield. Depleted uranium shells call for the theory to be adjusted so that the period of moral calculation matches the long-term effects of these weapons.
Despite its innocuous name, depleted uranium has a radioactive half-life of 4.5 billion years and maintains 60 percent of natural uranium’s radioactivity. It is valued by the U.S. military because it is cheaper, more readily available and more effective than its closest alternative, tungsten. As a byproduct of nuclear weapons’ manufacturing and nuclear energy, this low-level radioactive waste exists in abundance. Thus any D.U. used for military ordnance does not have to be stored in toxic waste dumps.
Because of its high density, D.U. shells can penetrate most kinds of armor, which enables the military to fire shells from greater and safer distances. Most recently, D.U. ordnance has been used in Afghanistan, Bosnia, Iraq, Kosovo, Kuwait, Serbia and Somalia. According to the Pentagon, over 320 tons of D.U. (944,000 rounds) were used in the 1991 Persian Gulf war. Exact figures on the number of D.U. shells used in the current U.S.-Iraq conflict are not yet available.
The long-term effects of D.U. raise serious moral questions. When a 120 mm. D.U. shell strikes metal, the D.U. vaporizes and then settles as dust contaminating an area up to 50 meters. This dust can be inhaled, ingested or enter the human body through open wounds. D.U. is even more deadly once it enters the food chain, where it gathers strength as it moves toward the kitchen table. While U.S. Army studies conclude that D.U. poses no significant health risks, the U.K. Atomic Energy Authority estimates that a half-million people in Kuwait and Iraq could die from the use of D.U. in the first gulf war alone. The health risks associated with D.U. include: chromosomal damage, stillborn births, birth defects, renal collapse, infertility, leukemia and a host of cancers. Following the 1991 war, for example, cancer rates in Iraq increased 7 to 10 times, and birth deformities increased fourfold to sixfold. In the Basra area, where D.U. shells were heavily used, stillborn births and congenital birth defects rose by 250 percent between 1989 and 1999. The hypocrisy of the American use of D.U. in Iraq is obvious. The U.S. invaded Iraq for violating U.N. sanctions and because of a perceived threat of weapons of mass destruction, and then used in the invasion weapons disapproved by the United Nations as W.M.D.’s.
The just war theory is criticized for lacking historical thickness, often ignoring the larger historical context (decades preceding the war) and choosing to focus instead only on the period immediately prior to conflict. This charge of lack of historical thickness now extends into the future as well as the past. Technology has created a new category of weapon with an impact that lasts decades, if not millions of years, into the future, and claims countless victims, mostly civilians, some who are yet to be born. D.U. shells join the dubious legacy of weapons, like Agent Orange and landmines, that claim victims long after the soldiers have returned home. Such weapons are rightly condemned as weapons of long-term destruction. The effects and moral responsibilities of modern war extend far beyond what the traditional theory considers, which leads to the question, What duties do the warring parties have post bellum?
Jus Post Bellum
In recent years a growing number of scholars have turned their attention to the lack of any jus post bellum category in just war theory. This emerging category includes criteria such as:
Vindication of Rights. Brian Orend, a leading scholar of jus post bellum ethics, notes that the only just cause for terminating a just war is the vindication of the rights that served as the reason for going to war in the first place. Any military action that seeks gains other than the vindication of rights cited under the just cause principle would be an act of aggression and unjustifiable. Further, unjust gains made during the war (acquisition of land, capital, war booty and so on) must be returned to their original owners.
Reconciliation. From its origins in St. Augustine, just war theory has acknowledged that war is never a genuine good. It is a concession to a sinful world, a lesser evil engaged to thwart a greater evil. The inherent sinfulness of war should not be glossed over.
Michael Schuck, a professor of social ethics at Loyola University Chicago, notes that it is normal to celebrate the end of a war and the return of soldiers. But victors often celebrate the defeat of their enemies as well and fail to recognize the sinfulness of war. Instead of celebrating the defeat of the enemy, the honorable behavior, valorous acts and sacrifices made by all sides need to be respected. The little good that can be found in war needs to be publicly acknowledged so that all sides might come to see that their former enemies include decent, kind, brave and virtuous people.
The success of the reconciliation process requires that all postwar settlements be made public, and that a competent authority declare the terms of surrender. Publicity and transparency in the settlement process blunts the pernicious effects of rumor and helps to stem seething resentment. Ultimately, the goal of the reconciliation phase is to transform a relationship of animosity, fear and hatred into one of tolerance, if not respect, to turn enemies into friends and to bring emotional healing to the victims of war.
Punishment. War is not only a sin, but also a crime. War crimes trials must be convened not only for the sake of punishment, but for justice’s sake. In the postwar period, victors face the temptation to prosecute only jus ad bellum crimes, thereby avoiding the ugly reality that all sides commit crimes in bello. However, as Orend notes, symmetry and equality are basic demands of justice. Both jus ad bellum crimes and jus in bello crimes must be prosecuted with equal vigor and honesty, including war crimes committed by the victors.
An absolute prohibition on punitive measures that degrade the defeated is essential to a postwar reconciliation process. When victors humiliate the defeated, they sow the seeds of retaliation. Every aspect of the punishment phase must be governed by the traditional jus ad bellum principles of discrimination (distinguishing between political and military leaders, soldiers of different rank and civilians); proportionality (punishments ought to fit the crimes, but due care needs to be exercised to ensure that civilians of the aggressor nation are not unreasonably burdened); and competent authority (war crimes trials need to be as public and transparent as possible and must be governed by a competent authority; victors ought not to assume that they are the competent authority to carry out the punishment phase).
Compensation by the aggressor nation is also an essential component of the punishment principle and must be defined by the principles of discrimination, proportionality, transparency, publicity and competent authority. Settlements cannot be so severe that they bankrupt the defeated and prevent them from establishing a functioning civil society. They ought to be negotiated in a public forum by parties recognized as having the proper authority, so that the validity of settlement agreements will be widely recognized.
Restoration. The principal aim of a just war is to establish a just peace, what Augustine called the tranquillitas ordinis (the tranquil order) or what we today might call a functioning civil society. A just war seeks to remedy the injustices that led to conflict, to punish those responsible for it and to establish a social, political and economic environment that allows people to pursue a life that is meaningful and dignified. In short, the goal of war is not simply peace, but conditions that allow citizens to flourish as individuals and as members of a community.
In addition to demilitarization requirements, there is need for political reform. If the persons in positions of authority are particularly aggressive, then complete regime change is in order. In instituting regime change, however, victors must make a full commitment to the social and political transformation of the defeated nation, which carries with it a commitment to infrastructure investments, education and institutional reforma costly and long-term investment. To cut and run before political reform has been established only compounds the suffering endured by civilians. The victor’s post bellum obligations last for as long as it takes for the vanquished to establish a functioning civil society. By invading another nation (even with just cause), a nation accepts the inherent duty to establish the tranquillitas ordinis.
The principle of restoration requires that those who employ weapons of long-term destruction be held responsible for postwar cleanup efforts. Those who resort to such weapons must return the land to its prewar condition and make every effort to rehabilitate those affected.
On moral grounds, restoration is a logical consequence of the aim of all just wars, namely a just peace. A nation cannot return to a state of affairs that encourages its citizens to flourish when its land remains unusable or when people are plagued by illnesses and birth defects for generations. On practical grounds, such a requirement would dissuade the use of such weapons, since the cleanup efforts are prohibitively expensive. It requires the cost-benefit analysis of the use of such weapons to reflect accurately the true cost of resorting to them.
Postwar restoration efforts are expensive, and that is a good thing. Waging war is one of the most serious actions humans can undertake. Requiring those who wage war (even for a just cause) to bear the burdens through the post bellum stage could help quell the often feverish rush to war.
A just war is one that is jus ad bellum, in bello and post bellum. Even as a just war can be fought unjustly, and an unjust war might be fought using just means, so too a just war can be ended unjustly, and an unjust war can be ended justly. Obviously, if a war is unjust (ad bellum or in bello), then the obligations post bellum are all the greater.
Pope John Paul II and nearly every major religious leader in the world condemned the U.S. invasion of Iraq as unjust. In particular, it failed to meet the ad bellum requirements of competent authority, comparative justice, right intention, last resort and proportionality. The use of D.U. shells violates the in bello principles of discrimination and microproportionality. As such, the post bellum responsibilities of the United States toward the people of Iraq are very great.
Recent polls have shown that support by U.S. citizens for the war in Iraq has fallen to an all-time low, yet during the invasion the war enjoyed overwhelming support. Having invaded Iraq, toppled its government, created an environment of lawlessness and littered its countryside with radioactive material, the United States and all the members of the coalition of the nations now have the strictest obligation to bear the costs of establishing the tranquillitas ordinis. Those who wage an unjust war have the greatest obligations post bellum. The sacrifices made to restore Iraq to a functioning society ought to be made by all Americans. It is our penance for having committed the sin of war.