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Terminating Wars and Establishing Global Governance

Published online by Cambridge University Press:  09 June 2015

Brian Orend
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When we think of recent armed conflicts, such as those in the Persian Gulf, Bosnia or Rwanda, we realize that one profound difficulty shared by them was how they ended. The process of war termination—of resolving successfully serious outbreaks of armed conflict between national groups—is fraught with fragility and complexity, featuring often competing claims of security and justice.

Only recently have we begun to understand how crucial the issue of war termination is, with regard not only to bringing particular conflicts to an end but also to mitigating further devastations in the future. Whereas past attention focused obsessively on the beginning of war, and/or on proper conduct during wartime, it is becoming clear that the ending of war deserves equal time with regard to critical analysis, historical application and the creative construction of proposals for amelioration. There are only a handful of works on this important and topical, yet neglected, issue.

This article proposes to contribute to the sparse literature by constructing a theory of war termination. The article will offer reasonable responses to questions of what constitutes justice, security and legality in the aftermath of war. The inquiry will proceed first by examining the status quo with regard to war termination, undertaking an examination of its few strengths and many weaknesses. Then, the account will fashion a more satisfactory set of laws to regulate state conduct during the immediate aftermath of a particular war. These universal and abstract norms, once constructed, will be applied to a recent and concrete case, namely, that of the lengthy termination process of the Persian Gulf War of 1991. The theory will next shift its attention away from short-term principles, regulating the endings of particular wars, towards those longer-term rules and institutional reforms required to transform the international system itself into one in which the incidence and destructiveness of war will be diminished. Before concluding, attention will be paid to defeating doubts about the laws forwarded as a plausible theory about securing justice and peace when wars end.

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Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 12 , Issue 2 , July 1999 , pp. 253 - 295
Copyright
Copyright © Cambridge University Press 1999

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References

1. Among these products are: Chapter 7 of M. Walzer, Just and Unjust Wars (New York: Basic Books, 1977); S. Albert & E. Luck, eds., On the Endings of Wars (London: Kennikat Press 1980) at 157-71; N. Oren, ed., Termination of War: Processes, Procedures and Aftermaths (Jerusalem: Magnes Press of Hebrew University, 1982); A.J.P. Taylor, How Wars End (London: Hamilton, 1985); and F.O. Hampson, Nurturing Peace: Why Peace Settlements Succeed or Fail (Washington, DC: U.S. Institute of Peace, 1996).

2. A process which continues to this day, more than eight years after the cessation of hostilities.

3. These articles from Hague IV can be gleaned from many sources, including W. Reisman & C. Antoniou, eds., The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict (New York: Vintage, 1994) at 130-33.

4. It might be suggested that, while there have been no new positive laws regulating war termination, there have been other recent developments in international law that can be interpreted in such a way as to apply to war termination. The passage of the various international human rights declarations and conventions might be offered as examples. This suggestion seems compelling; it is consistent with what will follow. But it does not detract from the cogency of the present claim. For the suggestion is like saying that the March 1999 passing into law of the International Convention Banning Land Mines is legally superfluous, in light of the previous passage of the various human rights covenants and the Geneva Conventions. But there is great merit—especially in terms of legal clarity and political momentum—to getting states to consent formally to explicit and positive principles regulating their own conduct. We have such content and positivity for the beginnings of wars and for conduct during wars but not for war termination, except for the rather empty proclamations of Hague IV.

5. Reisman & Antoniou, supra note 3 at 8.

6. Convention II, Article 6, of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects. This Convention was ratified in 1980. From Reisman & Antoniou, supra note 3 at 53.

7. And the recent outbreak of violence in the nearby province of Kosovo is evidence of this claim.

8. I. Kant, Political Writings, ed. by H. Reiss, trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1970) at 167.

9. For more on Kant’s views on this matter, see my “Kant on International Law and Armed Conflict” (1998) XI Cdn. J. L. Juris. 329. Relevant works of Kant’s include: Perpetual Peace (in Reiss, supra note 8 at 93-130); Theory and Practice (ibid, at 61-92); and The Doctrine of Right (ibid. at 131-75).

10. Hugo Grotius often gets credit for translating the speculative moral principles of just war theory, first constructed by the likes of Augustine and Aquinas, into more definite codes of international law. For more, see J.T. Johnson, Ideology, Reason and Limitation of War: Religious and Secular Concepts, 1200-1740 (Princeton, NJ: Princeton University Press, 1975); and J. T. Johnson, The Just War Tradition and The Restraint of War (Princeton, NJ: Princeton University Press, 1981). Grotius’ magnum opus can be found translated by F.W. Kelsey as The Laws of War and Peace (Indianapolis, IN: Bobbs-Merrill, 1962).

11. This distinguishes just war theory from pacifism, which refuses ever to extend such permission. It also distinguishes just war theory from its other main rival, realism, which is openly skeptical about whether moral concepts, such as permissibility and justice, can be applied meaningfully at all to the conduct of international relations. Unfortunately, this article cannot undertake an explanation of just war theory’s comparative strengths vis-à-vis pacifism and realism in this regard. Interested readers are directed to my forthcoming article, “A Just War Critique of Realism and Pacifism” in J. Phil. Research.

12. See, for example: J. Ladd, “The Idea of Collective Violence” in J. Brady & N. Garver, eds., Justice, Law and Violence (Philadelphia, PA: Temple University Press, 1991) 19 at 24-25; and especially R.J. Myers, “Notes on the Just War Theory: Whose Justice? Which Wars?” (1996) 6 Ethics & Int’l Affairs 116.

13. For more on human rights theory, see: T. Pogge, “How Should Human Rights be Conceived?” (1995) 3 Jahrbuchfur Recht und Ethik 103; H. Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (Princeton, NJ: Princeton University Press, 1996); J.J. Thomson, Rights, Risk and Restitution (Cambridge, MA: Harvard University Press, 1986); P. Jones, Rights (New York: St. Martin’s, 1994); and J. Nickel, Making Sense of Human Rights (Berkeley, CA: University of California Press, 1987).

14. For more on the moral justification of human rights claims, see: J. Rawls, “The Law of Peoples” in S. Shute & S. Hurley, eds., On Human Rights (New York: Basic Books, 1993) at 40-81; A. Gewirth, Human Rights: Essays on Justification and Application (Chicago: University of Chicago Press, 1982); D. Wiggins, Needs, Values and Truth (Oxford: Basil Blackwell, 1987); M. Nussbaum, “Human Functioning and Social Justice” (1992) 20 Pol. Theory 202; and J. Raz, “Rights and Individual Well-Being” (1992) 5 Ratio Juris 21.

15. Rawls, supra note 14 at 40-81; H. Lauterpacht, International Law and Human Rights (Hamden, CT: Archon, 1968); and the essays in L. Henkin & J.L. Hargrove, eds., Human Rights: An Agenda for the Next Century (Washington, DC: American Society of International Law, 1994).

16. This list of state rights follows: Rawls, supra note 14 at 40-81; T. Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); and M. Forsyth, “The Tradition of International Law” at 62-87, and D. Jones at 42-61, “The Declaratory Tradition in Modern International Law”, both in T. Nardin & D. Mapel, eds., Traditions of International Ethics (Cambridge: Cambridge University Press, 1992).

17. Rawls, supra note 14 at 40-81.

18. Walzer, supra note 1 at 62.

19. Reisman & Antoniou, supra note 3 at 8.

20. Please see what follows for a fuller specification of such norms.

21. Reisman & Antoniou, supra note 3 at 40.

22. Ibid, at 5-7.

23. Ibid, at 47.

For more on the moral philosophy behind jus ad bellum, see: Walzer, supra note 1 at 3-33 and at 51-112; W. V. O’Brien, The Conduct of Just and Limited War (New York: Praeger, 1981) at 13-37; R. Regan, Just War Theory: Principles and Cases (Washington, DC: Catholic University of America Press, 1996) at 3-86; R. Wasserstrom, ed., War and Morality (Belmont, CA: Wadsworth, 1970); J.B. Elshtain, ed., Just War Theory (Oxford: Basil Blackwell, 1992); and D. Luban, “Just War and Human Rights” (1980) 9 Phil. & Publ. Affairs 160.

24. Reisman & Antoniou, supra note 3 at 43-48.

25. Ibid, at 47.

26. Ibid, at 49-68, 84-87 and at 149-230.

For more on the moral theory behind jus in bello, see: Walzer, supra note 1 at 34-50 and at 127-224; O’Brien, supra note 23 at 37-70; Regan, supra note 23 at 96-100; Wasserstrom, ed., War, supra note 23 passim; Elshtain, ed., supra note 23 passim; T. Nagel, “War and Massacre” (1971/72) 1 Phil. & Publ. Affairs 123; and R.K. Fullinwinder, “War and Innocence” (1975/76) 5 Phil. & Publ. Affairs 90.

27. For more commentary on the content and structure of the current international laws of war, see: S. Bailey, Prohibitions and Restraints in War (Oxford: Oxford University Press, 1972); G. Best, War and Law since 1945 (Oxford: Clarendon, 1994); I. Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963); I. Detter Delupis, The law of war (Cambridge: Cambridge University Press, 1987); Y. Dinstein, War, aggression and self-defence, 2nd ed. (Cambridge: Cambridge University Press, 1994); M. Howard, ed., The Laws of War: Constraints on Warfare in the Western World (New Haven, CT: Yale University Press, 1994); H. Lauterpacht, ed., International Law: The Law of Peace, vols. 3-4 (Cambridge: Cambridge University Press, 1977-78)author: confirm title, edition and whether Lauterpacht is editor, and W.V. O’Brien, The Law of Limited Armed Conflict (Washington, DC: Georgetown University Press, 1965).

28. When it looks as though a just state is about to lose a war to an aggressor, the core recommendation to the just state, as Frances Kamm points out, is essentially to try and cut its losses, both prudential and moral. A just and rational state will, where possible, attempt to spare its people from the full wrath of the aggressor nation by offering it enough to satisfy its unjust desires and make it desist from its criminal activity. But, obviously, if the aggressor desires something like the annihilation of the people of die just state, followed by die conquest and take-over of its territory, then the recommendation would be to fight on, clearly while imploring the international community to intervene on its behalf and turn the tide against the aggressor. Indeed, it might be argued that a just state on die verge of such a defeat to an aggressor has a fully-fledged right to claim such international intervention.

29. Kant, supra note 8 at 169-71.

30. Walzer, supra note 1 at 119.

31. F. Kamm, “Making War (and Its Cousins) Unjustified” (unpublished paper) at 1.

32. Walzer, supra note 1 at 110 and at 123.

33. Perhaps no one has stressed the notion that a just war is a limited war than O’Brien, supra note 23.

34. This line of reasoning has sparked some resistance from those who view favourably the Allied insistence on unconditional surrender during the closing days of WWII. It is indeed ironic to contrast the relative reasonableness of the terms imposed by the Allies on the Axis powers at the close of WWII with the draconian terms imposed on Germany following WWI, after that country had surrendered conditionally. But we need to distinguish here between rhetoric and reality. The policy of unconditional surrender followed by the Allies at the end of WWII was not truly unconditional; there was never any insistence on the Allies being able to do whatever they wanted with the Axis powers and their people. There was a clear, albeit general, vision of rehabilitation that the Allies had in mind and that was commonly understood at the time. At the very most, the policy which the Allies pursued was genuinely unconditional only vis-à-vis the governing regimes of the Axis powers—but not vis-à-vis the civilian populations in those nations. Such a more discriminating policy on surrender may be defensible in extreme cases, involving abhorrent regimes, but is generally impermissible. For insistence on unconditional surrender is disproportionate and will reliably prolong fighting as the defeated aggressor refuses to cave in, fearing the consequences of doing so. The prevention of needless and gratuitous killing and suffering is one thing which just war theory prides itself on. Presumably this holds true for the corpus of international law as well. It is thus the undeniable responsibility of the victor to communicate clearly to the losing aggressor its intentions for post-war settlement—intentions which must be consistent with those principles enumerated below in this section.

35. Walzer, supra note 1 at 109-24.

36. Ibid, at 109-24.

37. This image of just war as radical surgery and just settlement as the subsequent therapy came to mind while reading N. Oren, “Prudence in Victory” in Oren, supra note 1 at 147-64.

38. Another way this requirement could be fulfilled would be for the victors to provide reliable security guarantees to the people of Aggressor.

39. Walzer, supra note 1 at 109-24.

40. For a relevant empirical/historical account of these and other war-endings and reconstructions, see Taylor, supra note 1.

41. Walzer, supra note 1 at 288.

42. How does proportionality affect the principle of trying the political leaders in Aggressor? The answer is that sometimes such leaders, in spite of their moral decrepitude, retain considerable popular legitimacy in Aggressor and that bringing them to trial could seriously destabilize the polity within Aggressor. The international community has recently faced this situation: 1) in Somalia in 1992/93, when attempt was made to arrest Mohammed Farah Aidid for war crimes—with the result being a serious escalation in the conflict, which ultimately led to the withdrawal of international forces; and 2) in Bosnia in 1994/95, when charges against Bosnian Serb leaders Ratko Mladic and Radovan Karadzic seriously increased tensions and delayed the onset of a not unreasonable peace agreement. Obviously, care needs to be taken, as always, that appeal to proportionality does not amount to rewarding aggressors, or to letting them run free and unscathed despite their grievous crimes. And yet this care does not vitiate the need to consider the destruction and suffering that may result from adhering totally to what the requirements of justice as retribution demand. One interesting and not unprincipled compromise position, with regard to Bosnia, has been not to move directly into Bosnian Serb lands to arrest Mladic and Karadzic (due to the serious instability and conflict that would probably produce) but, rather, to pen the two of them into their narrow territory for the rest of their lives, by stipulating that, should they ever cross an international border, they shall immediately be arrested and brought to The Hague for war crimes trials. For brief summaries of both of these conflicts, and for more detailed sources about them, see Regan, supra note 23 at 172-212.

43. For more on (positive international law regarding) war crimes trials, especially those at Nuremberg, see Reisman & Antoniou, supra note 3 at 317-405. Also relevant is the citation of the Nuremberg decision at 102-14 in Wasserstrom, ed., supra note 23; and S.L. Paulson, “Classical Legal Positivism at Nuremberg” (1974/75) 4 Phil. & Publ. Affairs 132. These contain references to further sources as well. A related moral account of jus ad bellum war crimes trials can be found at Walzer, supra note 1 at 287-303.

44. P. Christopher, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice Hall, 1994) at 139-64; and Walzer, supra note 1 at 304-28. See also G. Lewy, “Superior Orders, Nuclear Warfare and the Dictates of Conscience” in Wasserstrom, ed., War, supra note 23 at 115-34; R. Wasserstrom, “The Relevance of Nuremberg” (1971/72) 1 Phil. & Publ. Affairs 22; S. Levinson, “Responsibility for Crimes of War” (1972/73) 2 Phil. & Publ. Affairs 244; and D.A. Peppers, “War Crimes and Induction: A Case for Selective Nonconscientious Objection” (1973/74) 3 Phil. & Publ. Affairs 129.

45. As will be discussed in greater detail below in the section on long-termjus post bellum, the members of the international community on July 17, 1998 voted in favour of a treaty, at Rome, establishing such a permanent court at The Hague. The treaty requires the ratification of 60 countries, though, before the court will be legitimate and functioning.

46. These critics are often termed “realists” in some sense. A foremost contemporary exponent would be Henry Kissinger. Examples of modern realist literature are: H. Morgenthau, Politics Among Nations, 5th ed., (New York: Knopf, 1973); G. Kennan, Realities of American Foreign Policy (Princeton, NJ: Princeton University Press, 1954); and R. Keohane, ed., Neorealism and Its Critics (New York: Columbia University Press, 1986). See supra note 11 for more on realism.

47. See Regan, supra note 23 at 212-36.

48. In Pogge, Rawls, supra note 16 at 211-80.

49. This is but one version of a variety of commonplace scenarios of rational agents making important choices based on imperfect information. It is similar in structure to the storied prisoner’s dilemma and is concerned with many of the problems surrounding the so-called “sucker exemption,” which is debated hotly.

50. Indeed, the lengthy termination process continues to this day, at least eight years after the end of the war.

51. M. Walzer, “Justice and Injustice in the Gulf War” in D. Decosse, ed., But was it just? Reflections on the Morality of the Persian Gulf War (New York: Doubleday, 1992) at 10.

52. Some were scandalized that Clinton ordered the operation on the night before the first scheduled vote on his impeachment in the U.S. House of Representatives. Others noted the unhappy title of the operation, since “Desert Fox” was Nazi General Erwin Rommell’s nickname during WWII.

53. Perhaps this interminable problem is indicative of some flaws in the peace agreement, to be discussed in greater detail below. Of particular concern is the continuance of the sanctions on Iraq and the inability to complete the program of weapons inspections, which has drawn out far beyond anyone’s estimate. The fact that the U.S. seems now to have linked the two (such that the sanctions will only be lifted after the weapons inspections are done) may make the termination phase drag on indefinitely.

54. Information for this section on the Persian Gulf War has been drawn from the following sources: Regan, supra note 23 at 172-79; L. Freedman & E. Karsh, The Gulf Conflict: Diplomacy and War in the New World Order (London: Farber and Farber, 1991); W. Danspeckgruber & C. Tripp, eds., The Iraqi Aggression Against Kuwait (Boulder, CO: Westview, 1996); U.S. News and World Report, Triumph without Victory (New York: Times Books, 1992); James Turner Johnson & G. Weigel, eds., Just War and the Gulf War (Washington, DC: University Press of America, 1991); and A. Beyer & B. Green, eds., Lines in the Sand: Justice and the Gulf War (Louisville, KY: John Knox, 1992).

55. Kant, Writings, supra note 8 at 174.

56. T. Pogge, “An Egalitarian Law of Peoples” (1994) 23 Phil. & Publ. Affairs 195; T. Pogge, “A Global Resources Dividend” in D. Crocker & T. Linden, eds., Ethics of Consumption (Lanham, MD: Rowman Littlefield, 1998) 501 and then T. Pogge, “The Bounds of Nationalism” (1997) 7 Rechtsphilosophie 55; and T. Eichengren, J. Tobin (the Nobel Laureate) & C. Wyplosz, “Two Cases for Sand in the Wheels of International Finance” (1995) 105 The Econ. J., 162.

57. And it needs to be conceded that, at the time of writing, not all the details on the nature of the world court and how it will operate have yet been decided. There is thus some room for principled disagreement as to its exact functioning and powers.

58. One fascinating aspect of the history of ideas concerns the concurrence of both Kant and Jeremy Bentham on this point. It is both interesting and important that the two foremost exponents of such opposed moral, political and jurisprudential doctrines as Kantian deontology and classical utilitarianism should, of all things, agree on the wisdom of constructing some kind of cosmopolitan federation.

59. Kant, supra note 8 at 107-44. See also “Kant”, supra note 9.

60. Kant, supra note 8 at 107-44.

61. Ibid. at 105.

62. Ibid. at 104.

63. Ibid. at 104-5.

64. Ibid, at 104.

65. Ibid. at 174-75 and “Kant”, supra note 9.

66. See “Kant”, supra note 9, for more details on Kant’s intriguing proposals for global governance.

67. T. Pogge, “Cosmopolitanism and Sovereignty” (1992) 103 Ethics, 48 at 64.

68. This suggestion can also be found in F. Tesón, “The Kantian Theory of International Law” (1992) 92 Colum. L. Rev. 53 at 100; A. Bayefsky, “Making the Human Rights Treaties Work” in L. Henkin & J.L. Hargrove, eds., supra note 15 at 229; and C. Beitz, “Nonintervention and Communal Integrity” 385, D. Luban, “The Romance of the Nation-State” 392 and G. Doppelt, “Statism without Foundations” 398, all three in (1979/80) 9 Phil. & Publ. Affairs.

69. See also G. Clark & L. Sohn, World Peace Through World Law: two alternative plans, 3rd. ed., (Cambridge, MA: Harvard University Press, 1966) and, in what is arguably the most wide-ranging and detailed program for eliminating war as such since Kant himself, R.J. Glossop, Confronting War: An Examination of Humanity’s Most Pressing Problem, 3rd ed. (London: McFarland, 1994).

70. See also R.B. Bilder, “Possibilities for Development of New International Judicial Mechanisms” 317, M.C. Bassiouni, “Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal” 347 and D.F. Orentlicher, “Addressing Gross Human Rights Abuses: Punishment and Victim Compensation” 425 all in L. Henkin & J.L. Hargrove, eds., supra note 15.

71. For instance, by including as permanent members at least one country from major continents/regions not already represented, such as South America and Africa.

72. Glossop, supra note 70.

73. It would also assist greatly the serious and sad problem of what to do when just states are about to lose wars to aggressors, mentioned in Note 28. See also Pogge, “Cosmopolitanism”, supra note 67 at 61-62.

74. See also Pogge, Rawls, supra note 16 at 240-80; R.J. Glossop, World Federation? A Critical Analysis of Federal World Government (London: McFarland, 1993); E. Haas, Beyond the Nation-State: Functionalism and International Organization (Stanford, CA: Stanford University Press, 1964); and H. Newcombe, Design for a Better World (Lanham, MD: University Press of America, 1983). Some publications of the UN are also relevant, especially recent editions of the annual Human Development Report (particularly 1994), along with B. Boutros-Ghali, An Agenda for Peace (New York: UN, 1992).

75. Pogge, “Cosmopolitanism”, supra note 67 at 48-75 and Rawls, supra note 16 at 240-80.

76. M. Walzer, “The Reform of the International System” in O. Osterud, ed., Studies of War and Peace (Oslo, Norway: Norwegian University Press, 1986) at 227-50; Rawls, “Law”, supra note 14 at 41-82, but especially 73-74 and also endnotes 35 and 52 at 227-29; and Shue, supra note 13 at 173-80 in the new Afterword.

77. See Pogge, Rawls, supra note 16 at 211-80 and T. Pogge, “Moral Progress” in S. Luper-Foy, ed., Problems of International Justice (Boulder, CO: Westview, 1988) at 283.

78. This point is stressed by Rawls, supra note 14 at 41-82.

79. See “Kant”, supra note 9 at 329.

80. It should be reiterated here that nearly every nation-state in the world today is party to the UN, via ratification of its Charter. It is very important to note that in the Charter (Articles 1-6) it says that becoming a member of the UN implies a commitment to adhering to its core norms, notably international peace and security and the fulfilment of human rights. So there is a powerful argument that, whether or not they see themselves as doing so, all state parties to the UN have committed themselves legally to the fulfilment of human rights. Furthermore, a great number of state parties have individually ratified the particular human rights conventions, such as those listed in Twenty-Five Human Rights Documents (New York: Columbia University Center for the Study of Human Rights, 1995). No other moral norm or concept has even come remotely close to the success and promise that the idea of human rights enjoys as the prime candidate for the basis of a truly global conception of law and justice. It is, accordingly, on this conceptual and moral site that we must develop the ideas and policies required to make this unstable and sub-optimal world a morally more adequate place.