PROPOSAL FOR CORRESPONDING CONFERENCES JUS POST BELLUM: PRINCIPLES AND CRITERIA

Transcription

1 PROPOSAL FOR CORRESPONDING CONFERENCES JUS POST BELLUM: PRINCIPLES AND CRITERIA By Patrick Mileham

2 Dr Patrick Mileham is Vice Chairman of the Council of Military Education Committees of United Kingdom Universities and member of the Editorial Board of EuroISME. He served in the British Army for 28 years. This proposal is privately published. Prior permission should be sought from the author for re-publication of the whole or substantial extracts. He can be reached by Design and Layout by Kim Martin Printed by Letterworks, Reading, England Images UK MOD and Associated Press 2

3 PROPOSAL FOR CORRESPONDING CONFERENCES JUS POST BELLUM: PRINCIPLES AND CRITERIA This is a personal recommendation for consideration by national military and international institutions, notably EuroISME and ISME. By Patrick Mileham Background Jus ad bellum consists in politico-legal discussion and hypothetical, last resort questioning about what ought to be done. Once fighting has begun jus in bello is about manifestly restraining participants physical actions in using lethal force. How does one describe, maybe codify, jus post bellum? A short answer is that jus post bellum is a dynamic state of circumstances, events and relationships of professional agents attempting to transform the lives of afflicted peoples to hope for, and want, security and peace. Categorically distinct, jus post bellum incorporates organic and subjective human activities, rather than objective regulatory admonitions relevant for ad bellum and in bello discussion and restraint - perhaps more closely aligned with lex, law, rather than jus, justice. The desire for justice is about achieving fairness (Rawls 1 ) through actions transforming both or all sides as conflict draws to an end. So what? The traditional minimum force and hearts and minds appeal for troops to engage with populations no longer suffices in today s usually traumatic and horrifying, on-going, near-ending or post-conflict contexts. There are far too many hard politico-economic and religio-cultural factors involved in our globalizing world for a simple, direct approach. The levels of human awareness and expectation for justice, of whatever complexion, intensity and depth, far exceed those of even ten or twenty years ago. People want peace, their peace even if at the expense of those who have less energy to fight or shout their cause. Is our military ethics discipline in crisis, as MacIntyre holds 2? Maybe, maybe not. 3

4 Professional Military Ethics (PME) For a deeper understanding of our discipline, we should distinguish the ethics of defence, based on the just war theory, from the ethics of professional military service, pertaining in the profession of arms. What is distinct must then be conjoined. MacIntyre s and others claim of crisis may intuitively be that the ideology of jus post bellum, being missing but necessary for completeness of the ethics of defence, needs to be understood and embraced much more coherently and comprehensively by statesmen and all professional people involved in bringing about peace. My previous military experience, followed by 25 years of research and now concurrent engagement with my former profession, informs me that the link still remain far too loose. National militaries can conceive of moral components within such tactics as counterinsurgency doctrine and much military-technical practice as humane means bringing about peace. A somewhat naïve faith by politicians and military commanders in doing the right thing - such as intervening with a UN granted mandate or assertion of a responsibility to protect seemingly vulnerable populations - enables leading nations to launch into military operations in the hope that military might can eliminate the problem - in Iraq, Afghanistan, Libya and Syria, for example. The realization that interventional military strategy and tactics can worsen the situation for the target populations, reveals that a supposedly justifiable ad bellum campaign cannot in truth be so, unless the same conviction can be guaranteed to fulfil a lasting post bellum settlement, whole-heartedly accepted by all parties, predominantly by those indigenous populations having been most deeply affected by the conflict. Law and Defence Ethics After the last 25 years of active international debate, the criteria or principles for jus ad bellum (just cause; right intention; last resort; competent authority; proportional means; relative justice; and expectation of success) and jus in bello (proportionality; target discrimination; military urgency; and humanity) are very well established in doctrine, the law of armed conflict (LOAC) and rules of engagement (ROE) except for the quality of humanity, which is not easily defined in law or regulation and remains vague for military agents. 4

5 There exists a large amount of recorded post-operational reporting, and doctrine/ instruction published by nations for their professional military people about the strategic, political and technical means of bringing the fighting to an end, and the human socio-psychological effects are well understood. However no set of universal and permanent principles or criteria for jus post bellum exists. So in my opinion, and that of a number of influential people I have engaged with recently, believe new and proper sets of principles and criteria need to be researched devised and debated. Statesmen and professional military institutions and persons, whose number is growing as new nations are recognizing and developing their PME, need then to embrace those principles. Humanity and Professional Military Service Glover ( ) writes of moral identity as an essential dynamic of nations and military agents to uphold humanity in conflict. The professional ethical integrity of military agents, coinciding with their integrity as citizens and human beings, must be the starting point of the hearts and minds, socio-political and economic rebuilding of afflicted populations as conflict ends, alongside the techniques of security, stabilisation and peace support operations. There is a wealth of carefully recorded experience of relative success and failure, from early UN peace monitoring operations (Golan Heights, Cyprus) to urgent interventions of today (Chad, Burkina Faso). This research material exists if you know how to find it. The problem is that law, international and domestic, is a blunt instrument 4, and often does not enable sensible action, only prohibit or constrain. The humanity of professional agents as human beings is often compromised. A seminar was convened for international law researchers in Leiden in 2007, and the papers published 5. Contemporaneously with the invasion of Iraq much in mind, some criteria were put forward, such as vindication of rights; proportionality and publicity; discrimination between commanders, leaders, soldiers and civilians; justifiable punishment of offenders and compensation; rehabilitation; and regime reconstitution, building from a minimally just society. One of the speakers, Orend 6 has elsewhere recommended a new Geneva Convention on jus post bellum. So far so good. 5

6 Others, such as Biggar 7, from a deeply humanitarian and religious perspective, have investigated how to be merciful; punish yet forgive; to reconcile with compassion; and somehow promote absolution and atonement, bringing unity and integrity between parties reaching out for peace. The Truth and Reconciliation Commission s work in South Africa comes to mind. Naïve? Categorically no, in my view. How can you ask soldiers to exhibit such qualities in action? Much relies on the integrity of their behaviour as professionals and as human beings. Are we asking them to be soldier-saints? Is that possible? Are the national military codes of conduct helpful or too diverse, lost in language and cultural differences, or converging over time towards universality 8? In my view convergence will prove to be true over time. Deep research is required. Extensive debate is needed. Recommendation In principle the Royal College of Defence Studies, London, part of the UK Defence Academy, (following military ethics seminars in 2010 and 2011) has agreed to hold a third seminar on 16 November 2017 (date to be confirmed). The aim is actively to promote Principles and Criteria of jus post bellum, from the starting bases of law and humanity, and defence ethics, con-joined with the integrity of the ethics of professional military service. The EuroISME conference, 30 May to 2 June 2017 in Brussels, is entitled Restraint in War: Essential for a Just Peace? extending the theme of Jus Post Bellum for practical purposes. It is now recommended that the ISME Board should also consider their 2018 conference might be conducted also on the subject of jus post bellum. A joint publication of two or three seminar/conferences will be the outcome, to great international benefit in developing on-going research, debate, codification and widening compliance in the years ahead. 6

7 1 John Rawls, A Theory of Justice, Oxford University Press, Alasdair MacIntyre, Military Ethics: A Discipline in Crisis, in Routledge Handbook of Military Ethics, George Lucas (ed), Routledge, London, 2015, Jonathan Glover, Humanity. A Moral History of the Twentieth Century, Jonathan Cape, London, Charles Garraway, in Defence Academy Ethics Seminar. To consider the Ethical Component of Military Capability, Royal College of Defence Studies, Shrivenham, 2011, 8. 5 Carsten Stahn and Jann K. Kleffner (eds), Jus Post Bellum, T.M.C.Asser Press, The Hague, Brian Orend, speaking on Jus Post Bellum at the 2011 McCain Conference at the Stockdale Center, US Naval Academy, accessed 10 May 2016 via watch?v=ruriug721g0 7 Nigel Biggar, Fostering Reconciliation as a goal of Military Ethics in James Turner Johnson and Eric D. Patterson (eds), Ashgate Research Companion to Military Ethics, Ashgate, Farnham, 2015, Hakim Bouzid, Pierre Falzon, Eudes Foutel et al, Towards a European Code of Conduct for Military and Peacekeeping Forces in George Lucas (ed), Routledge Handbook of Military Ethics, Routledge, London, 2015,

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