12 Jus post bellum
So far in this book, we have considered the ad bellum and in bello parts of war.
In this chapter we shall look at some of the issues covered by jus post bellum:
justice after war. The first part of the chapter considers Alex Bellamy’s
distinction between minimalist and maximalist approaches to post bellum
obligations. We shall also outline Brian Orend’s maximalist principles of jus
post bellum, paying particular attention to the idea of reconstruction as part of
a just peace. The second part of the chapter will focus on issues surrounding the
prosecution of war crimes. We shall consider the superior orders defence of war
crimes, the role of duress in excusing war crimes, and the principle of command
responsibility. We shall also look at how non-judicial truth commissions have
been used to facilitate reconciliation in the aftermath of conflict.
ENDING WAR
Minimalism and maximalism
The recent conflicts in Iraq and Afghanistan have placed questions about jus
post bellum to the front and centre of contemporary debates about the ethics
of war. Several just war theorists argue that one cannot claim to be waging a
just war unless one has a clear ‘exit strategy’ – a plan for ending the war. As
Alex Bellamy describes:
Advocates of jus post bellum insist that if, as Augustine argued, war is only
legitimate to the extent that it is fought to preserve a just peace, then it stands to
reason that combatants be held to account for the way in which the war is
concluded and peace managed.
(A. Bellamy (2008), ‘The responsibilities of victory:
Jus Post Bellum and the just war’, Review of
International Studies 34, 601–25, pp. 601–2)
Of course, it is usually political leaders (rather than combatants) who
determine how a war should be brought to a close. The terms of the peace
240 Jus post bellum
agreement and the timetable for withdrawal are usually matters of policy
rather than military strategy. But the general point that (at least sometimes)
the justness of a war can be partly judged by the manner in which it is ended
seems plausible. Even if a warring state has a just cause and obeys the in bello
rules, it can undermine its claim to be fighting a just war if, for example, it
offers only unfair terms of surrender.
Bellamy distinguishes between minimalist and maximalist approaches to
jus post bellum. Minimalism is generally identified with earlier just war
scholars such as Hugo Grotius. On the minimalist approach, the post bellum
rules are designed to rein in the excesses of victorious states. Minimalists
thus view the post bellum rules as permissions – as telling victors what they
are allowed to do in victory. Most minimalist accounts of jus post bellum
limit the rights of victors to actions that ‘protect themselves, recover that
which was illicitly taken, [and] punish the perpetrators’.1 In effect, this
means that victors may secure the just cause of the war and deter future
aggression by punishing the aggressors.
The idea that the post bellum rules aim to restrict what victors may do is
probably a reaction to historical instances of victorious nations ‘raping and
pillaging’ their defeated foes (Brian Orend cites the typical Greek and Roman
demands that their enemies surrender unconditionally, effectively granting
the victors the right to take whatever they like from the defeated country).2
On some minimalist accounts, victors may, in addition to securing the just
cause, halt serious human rights violations taking place within the defeated
country. But while a victor may temporarily occupy a defeated country in
order to achieve the ends of protection, recovery and punishment,
minimalists prohibit ‘full assumption’ of the reins of government.3 This
means, for example, that minimalist accounts prohibit enslaving the
inhabitants of the defeated country or attempting to colonise the land.
Maximalism is a more recent development in the jus post bellum literature,
and is now the dominant view of the role of victors. Maximalists understand
the post bellum rules as imposing obligations upon the victors rather than
granting them permissions. Their concern is not that states will do too much
in victory and that these excesses must be curbed. Rather, the worry is that
victorious states will do too little, leaving behind them a dysfunctional state
that cannot meet its citizens’ basic needs. Bellamy suggests (‘The responsibilities
of victory’, p. 615) that while the minimalist rules of jus post bellum find their
roots in just war theory, invoking familiar ideas of just cause and
proportionality, the maximalist rules are grounded in more general liberal
theory and in international law. These normative sources often require that we
not only refrain from inflicting harms but also assist others in need and help
bring about the conditions under which people can lead minimally decent lives.
Brian Orend suggests a maximalist account of jus post bellum based upon
the following principles:4
Jus post bellum
1.
2.
3.
4.
5.
6.
7.
241
proportionality and publicity;
rights vindication;
discrimination;
punishment (i);
punishment (ii);
compensation;
rehabilitation.
For Orend, jus post bellum is conceptually connected to jus ad bellum. It is not
possible, in Orend’s view, for an aggressor to bring about a just peace. So his
principles are intended to guide the behaviour of a just, victorious state as it
devises terms of peace with a defeated aggressor.
The conditions of proportionality and publicity are intended to restrict
the severity of the peace terms imposed by the victor. Orend stresses that
states must resist the temptation to insist upon harsh terms as a form of
revenge, arguing that to ‘make a settlement serve as an instrument of
revenge is to make a volatile bed one may be forced to sleep in later’.5
Nowhere is this more apparent than with the repercussions of the Treaty
of Versailles. At the end of the First World War, Germany was forced to
accept responsibility for the war (the infamous ‘war guilt’ clause) and,
therefore, to pay crippling reparations to fund the rebuilding of Europe.
The resentment created amongst Germans by the terms of the treaty was
instrumental in Hitler’s rise to power in the 1930s, and in generating
support for Hitler’s aggression. By imposing requirements of proportionality
on peace agreements, then, we might lessen the chances of future aggression.
And one way of ensuring proportionality is to make the terms open to
public scrutiny, hence Orend’s inclusion of a publicity condition.
Orend’s second condition – rights vindication – speaks to achieving the
just cause of the war. Any peace agreement should secure the rights whose
protection warranted the initial resort to war. This principle makes it
especially apparent why Orend thinks that a just peace can be achieved only
when the victorious side is the just side. If the victors are aggressors,
achieving the cause of their war (such as the annexing of land or the theft
of natural resources) hardly seems a likely component of a just peace.
The principle of discrimination is rooted in the in bello requirement to
distinguish between combatants and non-combatants. It requires that the
terms of the peace settlement maintain what Orend calls a ‘reasonable
immunity’ of the civilian population.6 In other words, the financial penalties
imposed upon the defeated state should not have too severe an impact on
the general population. The rationale for this principle is the (by now
familiar) idea that non-combatants lack responsibility for the war, and thus
cannot be fairly punished for it. While it would be unrealistic to suppose
that the ordinary population will not feel the burden of reparations to some
242 Jus post bellum
extent, Orend thinks that the principle of discrimination prohibits imposing
the kind of crippling reparations that were forced upon Germany after the
First World War.
In addition to defeating the unjust aims of the aggressor, Orend argues that
a just peace will involve punishing those responsible for the aggression. Leaders
should thus be subjected to fair and public trials for breaching international
law. There are three main reasons that warrant pursuing such trials even once
the rights threatened by aggression have been secured and any illicit gains made
by the aggressor have been undone. The first reason is deterrence: subjecting
aggressive leaders to trial and punishment deters both future aggression from
the same state and future aggression from other states. The second reason is
reform: punishment, Orend says, can ‘be an effective spur to atonement,
change and rehabilitation on the part of the aggressor’.7 Third, and, in Orend’s
view, most importantly, justice requires that we punish those who have
inflicted suffering on others. A failure to pursue criminal trials against
aggressors ‘disrespects the worth, status, and the suffering of the victim’.8
Orend’s second principle of punishment requires that combatants on both
sides who are accused of in bello war crimes should be subject to investigation
and possibly trial. As we shall see in the second part of this chapter, however,
prosecutions are usually restricted to high-ranking members of the armed
forces and political leaders. Low-ranking combatants who commit war crimes
have been largely protected from criminal prosecution by various incarnations
of the ‘superior orders’ defence, which exempts them from responsibility for
wrongs committed under the orders of a superior officer.
Orend argues that, in addition to punitive measures, a just peace might
include making the aggressor nation pay compensation to the victims of
aggression. But, again, he urges that these measures should be fair and not
threaten the aggressor’s ability to rebuild after the war or fulfil its citizens’
basic human rights. As with the other terms of the peace settlement,
frustrating the defeated country’s attempts to rebuild can foster dangerous
resentment that can lead to further conflicts.
Finally, Orend suggests that political rehabilitation can form part of jus
post bellum. This rehabilitation is usually directed at preventing future
aggression, perhaps by reinstating a usurped government or enforcing some
kind of demilitarisation (although harsh demilitarisation is often interpreted
as punitive rather than preventive). More controversially, rehabilitation
might require the total dismantling and replacing of the existing regime, if
that regime is particularly abhorrent or aggressive.
Post bellum regime change
This sort of extensive regime change can be controversial, not least because
regime change is generally regarded as an unjust cause for war. For example, in
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243
the first edition of Just and Unjust Wars, Michael Walzer argues that the sign of
a genuine war of humanitarian intervention is that the intervener is ‘in and out’,
eschewing any kind of state-building.9 States that linger in other countries while
attempting political reform leave themselves open to the charge of imperialism.
But many just war theorists argue that victors are not only permitted, but
required, to leave a defeated state in something better than its pre-war conditions.
After all, as Orend points out, to allow it to return to its pre-war state is to allow
it to return to the conditions that led to the war in the first place.10
Orend suggests that the goal of political rehabilitation is ‘the timely
reconstruction of a minimally just political community’.11 In the event that
the aggressor state is ‘truly atrocious’ or ‘still poses a serious and credible
threat to international justice and human rights’, the victor may remove and
replace the regime.12 A clear example of this sort of rehabilitation is the
post-Second World War peace agreement between the Allies and Japan,
which gave the Americans the power to completely rewrite the Japanese
constitution. The Allies wanted to engender democratic participation in a
bid to curb future aggression, and the new constitution thus imported
certain liberal principles into Japanese society, such as freedom of religion,
freedom of speech, democratic elections and gender equality.
However, as Orend notes, the construction of such a community can be
enormously costly. Who ought to bear these costs? Orend argues that
rehabilitation of this sort ‘would seem to necessitate an additional
commitment on the part of [victor] to assist the new regime [in the defeated
state] with this enormous task of political restricting … until the new regime
can “stand on its own”’.13 He cites the US involvement in post-war Japan as a
‘stellar’ example of such a commitment.14 But while such commitment may
be admirable, it’s not clear why Orend conceives of it as morally required – as
a commitment ‘that must be borne by any [victor] seeking to impose such
far-reaching and consequential terms’ on a defeated aggressor.15
On the one hand, Orend makes the commitment sound optional, in that
it falls only upon those who choose (or seek) to attempt a general overhaul
of the defeated state. But, on the other hand, if the state in question is
either committing ongoing atrocities against its own people, or posing an
ongoing threat of the sort that Orend describes, it doesn’t look as if
dismantling the existing regime is optional at all. It is part of securing the
just cause of the war that one neutralises the enemy’s aggression. If so, the
victor has no choice but to dismantle the existing regime if they are to
secure a just peace. If the obligation to rebuild follows from a decision to
dismantle, it seems that, on Orend’s view, this is not an obligation that
victors can avoid.
It may, of course, be in the victor’s interests to replace a dismantled
regime, and to replace it with a minimally just regime of the sort Orend
describes. To leave a country defeated and leaderless might well spark a civil
244 Jus post bellum
conflict that establishes another aggressive regime. It could also engender
hostility towards the victor that later manifests in further conflicts. But
prudential interests aside, it isn’t clear why a state that successfully wages a
defensive war would acquire an obligation to replace the aggressive regime
and support it until it can stand on its own.16 Such an obligation could
impose significant costs at a time when the victorious state is attempting its
own post-war reconstruction.
One possible explanation of such an obligation is that even just, defensive
wars inflict harms upon innocent non-combatants in the aggressor nation.
These harms can be physical, such as the destruction of life and property.
But they can also be more abstract. Causing the collapse of a country’s
government renders its citizens vulnerable to all kinds of dangers, from a
dearth of basic goods to threats of external aggression. Even if the collateral
harm done to non-combatants is proportionate to the just cause, it is still
harm to people who, as Gary Bass puts it, are not liable to ‘the kind of
suffering they endured as a consequence of policies adopted in foreign
ministries and cabinet meetings’.17 Since, in the course of defending
themselves, the victors have inflicted harms upon innocent people, they
may owe it to those people to help rebuild their state as a form of apology
or compensation. We can imagine comparable duties arising in individual
self-defence. If I trample over you as I flee a murderous attacker, it might
be incumbent upon me to later help you up, take you to the hospital, and
so on. After all, I have harmed you in the course of protecting myself. Even
if harming you is proportionate and permissible, I might still have an
obligation to do what I can to make good that harm.
Reconstruction after humanitarian intervention
What if the war in question is not a war of self-defence, but rather a war of
humanitarian intervention? Walzer’s claim that intervening states should be
‘in and out’ suggests that states do not have duties of reconstruction after wars
of intervention. The rationale behind this claim is that interventions should
not be masks for straightforward imperialism. But the lack of an obligation to
rebuild in the wake of an intervention might also be explained by thinking
about the differences between self-defence and other-defence. While it seems
plausible that if I harm you as a side-effect of my self-defence, I should try to
assist or compensate you in some way, this is less obviously true if I harm you
in the course of rescuing someone else. The duty to compensate seems to fall
more naturally to the person being rescued than to the rescuer. After all, they
are the beneficiary of the harm that I inflict on you. So if an intervening state
inflicts collateral harms in the course of a humanitarian war, we might think
that the burden of making good those harms falls to those who are the
beneficiaries of the intervention, and not to the intervening state.
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However, Walzer later revises his position on the role of interveners,
suggesting that sometimes ‘humanitarianism probably requires staying on,
in a kind of protectorate role, to keep the peace and ensure the continuing
safety of the rescued community’.18 He also criticises those who, motivated
by the mounting costs of war, withdraw too quickly. In Walzer’s view, wars
of intervention are morally optional, because duties to intervene are
imperfect duties that do not attach to any particular state: ‘Somebody ought
to intervene, but no specific state in the society of states is morally bound
to do so.’19 But, he says, once a state chooses to intervene, it must take on
the burdens of reconstruction as part of its having a just overall case for
war. A just war requires a plan for peace and without such a plan the
intervention is unjustified. Bellamy similarly argues that ‘states that embark
on humanitarian interventions are required to assist the host population in
rebuilding their country, though they must not impose their own blueprint
for reconstruction on unwilling peoples’.20
We should notice an important assumption underlying both Walzer’s
and Bellamy’s claims, namely that the beneficiaries of the rescue will not be
able to bear the costs of the reconstruction themselves. This does seem like
a plausible difference between individual rescue cases and cases of
humanitarian intervention, where persecuted groups are often those with
the fewest resources at their disposal. But it seems plausible that if they
could finance reconstruction themselves, they would be obliged to do so. It
would be odd if this duty nonetheless fell to the intervening state. This
suggests that the connection between the intervener and reconstruction is
more contingent than Walzer and Bellamy allow.
I think, therefore, that we might wonder whether the content of a plan
for peace must be as narrowly construed as Walzer and Bellamy claim. Even
if it is part of a just war that one should have a plan for the war’s aftermath,
it doesn’t follow that that plan must be to shoulder the costs of
reconstruction oneself. Indeed, we might think that since the intervening
state is bearing the (often substantial) costs of military intervention, it falls
to other states to take on the burden of reconstruction. Consider the
following example, which I have borrowed from Seth Lazar:21
Rescue
A child is drowning in a fast-flowing river. The water is sufficiently
dangerous that any rescue attempt would be supererogatory. Being a
brave soul, you jump in and manage to drag the child to the riverbank.
Although still alive, she is in a pretty bad way and needs to get to a
hospital. The only way she can get there is if a nearby fisherman
drives her in his car.
246 Jus post bellum
It seems obvious that even if the fisherman isn’t obliged to try to rescue the
child from the river, he is obliged to drive her to the hospital. He might even
be so obliged if the drive is somewhat risky – perhaps the weather is bad and
visibility on the road will be poor – assuming that the child will suffer serious
harm if he does not take her. The fact that you have rescued the child from
immediate danger does not preclude others from having duties of assistance
towards her.
What if you too have a car, and so either you or the fisherman could
drive the child to the hospital? Even in this case, it seems that you might
fairly insist that the fisherman take her. After all, you have already borne a
significant cost to save her, having battled through cold, dangerous water to
drag her out of the river. If any further costs of the rescue can be borne by
someone else, it seems fair that they are so borne. If this is right, it looks as
though third parties can have a duty to assist with the aftermath of a rescue
even when they lack an obligation to initiate the rescue.
Walzer’s characterisation of humanitarian intervention as a duty that
attaches to nobody in particular perhaps lends superficial credence to his
claim that only the intervening state has a duty of reconstruction. Both he
and Bellamy seem to draw support for their claims from an implicit sense
that since the intervening state ‘chose to get involved’ by waging a war of
intervention, they brought the further duty of reconstruction upon
themselves. After all, if they hadn’t waged an interventionist war, there
would be no post-war reconstruction to undertake. It is therefore unfair to
expect a third party to take on this duty.
However, cases like Rescue show that this kind of ‘all or nothing’ view
isn’t plausible, even when the initial rescue is wholly supererogatory. The
fact that the child wouldn’t need to go to hospital if you hadn’t pulled her
out of the river doesn’t mean that nobody else has a duty to drive her there.
So while it might be true that intervening states have a duty of
reconstruction if nobody else can bring the reconstruction about, it doesn’t
look very plausible that they (and only they) have such a duty if the
reconstruction could be undertaken by a third party.
We might also object more generally to Walzer’s claim that intervention
is an imperfect duty. An alternative view is that the duty to intervene
attaches to every state that can intervene, and that those who fail to
intervene (or at least fail to offer to do so) simply fail in this duty. If so,
such states owe it to the intervening state to take up the slack in the
aftermath of the war, having shirked their earlier duty. And even if the
intervening state is best placed to organise the reconstruction (perhaps
because it has won the trust and support of the local people), this is no bar
to having third parties fund the reconstruction, discharging their duty via
the intervening state in this way.
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Of course, there are interesting questions about what a state ought to do
if third parties will not agree to assist in the reconstruction. If they can bear
the costs of both the intervention and the reconstruction themselves, they
probably ought to do so. But what if they can only bear the costs of the
intervention? If a plan for reconstruction really is part of having a just war
overall, it looks as though states should not intervene if they cannot rebuild
afterwards.
I am not sure whether or not this is true. It would certainly be permissible
to rescue the drowning child even if you knew that you couldn’t get her to a
hospital and that she would almost certainly die anyway once you had pulled
her out. But here you risk only your own life, and (as we discussed in
Chapter 4) an intervening state risks the lives of its combatants. If there is a
significant chance that withdrawing immediately after halting a crisis would
only delay (and not prevent) that crisis, it might be hard to justify risking
the lives of one’s combatants on such a mission. This points us to another
aspect of jus post bellum that isn’t so apparent in Orend’s account, namely
our obligations to those who have fought on the just side of the war.
Securing a just peace doesn’t only make amends to innocent people caught
in the crossfire and protect threatened rights. It is also one way of ensuring
that the sacrifices made by just combatants were not in vain.
WAR CRIMES
Those who break the rules of jus ad bellum by waging an unjust war are guilty
of the crime of aggression. But those who break the in bello rules are also
guilty of war crimes. The most serious of these violations – those that form
part of a wider policy or plan – are tried by the International Criminal Court
(ICC), along with crimes against humanity such as genocide or forced mass
deportation. Less systematic violations of the laws of war are prosecuted by
national courts. These are usually the courts of the defendant’s home country.
However, the universal jurisdiction that exists over war crimes means that,
strictly speaking, any country can try a person accused of war crimes, even if
the crimes were committed on foreign soil against foreign nationals.
However, these criminal trials usually focus on a handful of high-ranking
officers and political leaders. In order to bring wrongdoers more generally
to account, some countries have set up ‘truth commissions’ – non-criminal
investigations intended to bring a sense of justice to the wider community.
The superior orders defence
In 1968, US soldiers carried out a brutal massacre in the village of My Lai in
Vietnam. The members of Charlie Company raped, mutilated and shot several
hundred civilians, including women and children. One of the perpetrators, Paul
248 Jus post bellum
Meadlo, later described his role in the massacre during a television interview
with CBS news. But only the unit commander, Lieutenant William Calley, was
ever convicted of any crime. The men he commanded, all of whom admitted
partaking in the massacre, were either acquitted or not brought to trial at all.
This case illustrates a common assumption that has pervaded both the
law and our perception of moral responsibility within the armed forces:
when they are following orders issued by a person who is in a position to
give them, combatants are not accountable for wrongs that they commit.
This placing of responsibility squarely on the shoulders of those who order
wrongdoing is typically explained by a variety of excusing factors that
together form the superior orders defence. In its original pre-Nuremberg
form, this defence afforded combatants pretty good protection from
prosecution for illegal actions. As the legal theorist L.F.L. Oppenheim
describes, the law held that ‘In case members of forces commit violations
ordered by their commanders, the members may not be punished, for the
commanders are alone responsible, and the latter may, therefore, be
punished as war criminals on their capture by the enemy.’22
We can identify three central aspects of the superior orders defence. The
first is the prima facie legality and moral permissibility of the relationship
between a combatant and their commanding officer. The combatant does
not act wrongly or illegally in joining the armed forces (assuming that the
force in question is an overall just force), and their commander does not in
general act wrongly or illegally in giving them orders. So, we might argue,
the combatant is justified in assuming that the default position of their
orders is that they are legal and moral.
A second feature of the superior orders defence is the claim that
combatants have a legal obligation to obey their commanding officer. Some
people have argued that soldiers also have a moral obligation to obey such
commands. Recall from Chapter 6 Samuel Huntington’s claim that:
loyalty and obedience are the highest military virtues … When the military man
receives a legal order from an authorized superior, he does not argue, he does not
hesitate, he does not substitute his own views; he obeys instantly … His goal is to
perfect an instrument of obedience; the uses to which that instrument is put are
beyond his responsibility.
(S. P. Huntington (1957), The Soldier and the State:
The Theory and Politics of Civil–Military Relations.
Cambridge, MA: Harvard University Press, p. 73)
While acknowledging that a combatant ‘cannot deny himself as a moral
individual’, Huntington argues that even when an order strikes a combatant as
immoral, ‘rarely will the military man be justified in following the dictates of
private conscience against the dual demands of military obedience and state
welfare’.23
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The reasoning behind this view is probably largely pragmatic. As we saw
in Chapter 6, one of the most common arguments made against the claim
that combatants act wrongly if they participate in an unjust war is that it
would undermine the whole institution of the military if combatants began
questioning, rather than simply obeying, orders. According to this
argument, when combatants enlist, they transfer at least part of their
autonomy to the wider organisation. They thereby confer upon their leaders
the right to make decisions about what they, as individuals, will do.
Since we have good reason to want to preserve military institutions (at
least if they are overall just), and to want those institutions to run
efficiently, we have good reason to discourage combatants from asking
questions. If this pertains to questions about the justness of the war itself,
it also, and perhaps more critically, pertains to questions about the justice
of individual actions during the war. The inconvenience of having soldiers
question the justness of a war before they embark upon it pales in
comparison with the danger of having them routinely question the justness
of particular actions within that war. By training and requiring a recruit to
always defer to those higher up in the chain of command, we ensure the
smooth running of the military that is crucial to its success. And so a
soldier’s obedience to orders is justified by appeal to the necessity of
preserving the chain of command.
The third feature of the superior orders defence refers to the pressures
of war. Soldiers are in a situation of ongoing mortal peril, in the midst of a
bloody conflict with all the pressures and distortion that this brings. We
cannot expect combatants in these circumstances to make informed
decisions (or so the argument goes), and thus combatants are justified in
deferring to the orders of superior officers who are in a better position to
judge the legality and morality of orders.
After Nuremberg
During the Nuremberg Trials of 1945, where various members and supporters
of the Nazis were prosecuted for war crimes, a new understanding of the
superior orders defence emerged. Prior to Nuremberg, a combatant needed to
show only that they were following orders to be exempted from wrongdoing.
But the Nuremberg defence, as it came to be known, exempted a combatant
from responsibility for a crime only if he or she could prove that they
committed the crime believing both (a) that the orders were morally and
legally permissible and (b) that they had no reasonable alternative course of
action that was morally preferable. In the event that a combatant knew that an
order was unlawful, they could be prosecuted for following it.
Of course, the difficulty here is that in order to find a combatant guilty
of a war crime, the prosecution would have to prove not that the order they
250 Jus post bellum
followed was in fact unlawful, but rather that the combatant believed that it
was unlawful. And this could be very difficult to establish. Given this, in
1997 the ICC introduced a further clause requiring combatants to disobey
orders that are manifestly unlawful. Under this standard, combatants are
responsible for the perpetrating of a crime if they should have recognised
that an order was illegal, even if they did not in fact do so. The ordering of
an action that pertains to genocide, for example, constitutes a manifestly
unlawful order. A combatant who participates in genocide cannot invoke a
defence of superior orders.
I suspect that, these days, a lot of people would agree that soldiers
should not blindly follow orders no matter what they are, and that it is not
a defence of homicide to insist that somebody else told you to do it, even if
that somebody else is usually in a position to give you orders. Part of being
a professional soldier, and not a member of a mob or terrorist group, is that
one restricts one’s activity to lawful orders.
However, even since the ICC introduced the manifest illegality clause,
most tribunals have not seen a proliferation in the prosecution of lowerranking combatants for war crimes. Indeed, in the rare cases where the
perpetrators (rather than the organisers) of crimes are prosecuted, some
people see this as a failure of justice. During the trial of three Bosnian Serbs
accused of rape in 2001, protesters held signs up outside the court reading
‘Punishment for the big fish – where are they?’24 Many people would rather
try those who organised (or failed to prevent) atrocities than those who
actually carried them out.
We might think that this is simply a pragmatic preference. Since we
cannot prosecute everyone, we should prosecute those who have indirect
responsibility for a large number of crimes instead of trying those who are
directly responsible for a much smaller number. But it might not be a solely
pragmatic consideration. After the Second World War, more than 5,000
Japanese leaders and combatants were convicted of war crimes, including
many ordinary, low-ranking combatants. Soon afterwards, a ‘parole for war
criminals’ campaign began, describing these combatants as victims of the
war rather than criminals.25 And this is indeed how many people see
ordinary combatants, who are usually young men who have undergone
some kind of desensitisation training to numb them to the horrors of war,
and who are already breaching the usual moral rules that prohibit killing.
They are told that if they don’t follow orders, people on their side – both
combatants and non-combatants – will die. And they often have only
limited information about the circumstances in which they act. What looks
to them like an unarmed civilian might be known by those with more
information to be a suicide bomber. They are reliant upon a general
assumption that others in the chain of command are obeying the rules of
war and are not ordering them to break those rules. Many people think that
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it is wrong to punish these combatants even if they should have known that
what they were doing was wrong.
Moral perception
Larry May argues that the ICC is mistaken in its assumption that combatants
are always capable of identifying even ‘manifestly’ unlawful orders. He argues
that the current superior orders defence identifies two moral choices that
combatants are supposed to make. The first is a decision that an order is legal
and moral; the second is a decision that there are no morally preferable options
available to them. May argues that the defence thus assumes that combatants
are capable of making these sorts of decisions – that they can, for example,
scrutinise an order and judge whether or not they are allowed to follow it. But
May claims that it is often not possible for a combatant to make such choices.
In response to people like Michael Walzer, who argue that any normal person
would have known that the orders to kill the My Lai villagers were immoral,
May maintains that we cannot apply the perspective of normal people to the
abnormal standards of war.26
May suggests three possible perspectives from which we can apply the
Nuremberg test of manifest illegality to a case like the My Lai massacre.
The first is by asking how a normal person ‘unexposed to the vagaries of
war’ would have reacted to the order to kill the villagers.27 The second is to
ask how a normal person exposed to the same wartime experiences as the
combatants at My Lai would have reacted to those orders. The third is how
someone just like the combatants at My Lai, having undergone their
wartime experiences, would have reacted to those orders.
The third perspective is discounted by May, since ‘presumably someone
just like the soldier in question would react just as the soldier in question
did react’.28 And he objects to the first perspective on the grounds that the
usual ‘jury of peers’ standard that we apply to domestic crimes simply
doesn’t work when the context of the crime is so far outside the experience
of the peers. While most people can extrapolate from their own experience
to understand the context of a domestic crime, they cannot extrapolate
from ordinary life in a way that tells them what is reasonable in war.
This leaves the second perspective – that of a normal person who has
undergone the things that combatants undergo in war. How would such a
person react to an order to kill the villagers of My Lai? May points out
that members of the Vietcong often dressed as members of the local
population, blending into villages just like My Lai. The combatants had
been told that the village was a Vietcong stronghold and that even children
might be carrying weapons. In these circumstances, May argues, it is not
obvious that a normal person would have known that their orders to shoot
were illegal, because it wasn’t obvious that these were non-combatants.
252 Jus post bellum
What seems manifestly unlawful to normal people in normal circumstances
may not be manifestly unlawful to combatants in these circumstances:
This discussion does not call into question the normal sentiment that innocent life
should be preserved. Rather, what is uncertain is the very judgment that a certain
adult, or even a child, is to be seen as an innocent person. And yet it is this
judgment, really a matter of moral perception, that is crucial to the determination
of whether it was indeed an outrage for Lieutenant Calley’s unit to kill civilians in
the hamlet of My Lai in Vietnam. Normally, things would be clearer. But here we
are dealing with several levels of abnormality.
(L. May (2005), Crimes Against Humanity: A Normative Account,
New York: Cambridge University Press, p. 190)
May does not argue that Lieutenant Calley should have been acquitted. Rather,
he is drawing attention to the difficulty of applying the manifest illegality
standard to even those things that appear to be paradigmatic atrocities. Even
if, once we add in further details about My Lai, we can conclude that those
particular combatants should have known that those particular orders were
illegal, May’s general point about the difficulty of employing the manifest
illegality standard still stands, at least with respect to the killing of noncombatants. (It is, of course, far more difficult to see how mutilations and
rapes of the sort that took place at My Lai could seem anything other than
manifestly illegal, even under the most abnormal of circumstances.)
Duress
May also argues that, given their belief that their lives were under threat in My
Lai, the combatants involved might seek protection under the part of the
superior orders defence that excuses combatants who believed themselves to
lack morally available alternatives to committing war crimes. May thus suggests
that a plea of duress can support the superior orders defence.
The role that duress ought to be allowed to play in excusing combatants
who commit war crimes was contested in the ICC. The majority opinion
was that duress could mitigate responsibility for killing innocent civilians,
but could not constitute a full defence (although it might for less serious
crimes). The dissenting view held that duress can be a full defence provided
that the duress was proportionate. So a combatant who kills an innocent
civilian because they fear for their own life ought to be able to use duress as
a full defence.
May argues that the ICC should have adopted the dissenting view that
duress is a full defence of homicide. On this view, if a combatant (or
anyone else for that matter) has good reason to think that he faces a
significant risk of a serious harm should he fail to comply with an order,
Jus post bellum
253
then failing to comply with that order is not a moral option that is available
to him:
As the probability increases that one will pay a high price for non-compliance with
an order, then non-compliance becomes less and less reasonable, and we are less
and less inclined to say that one had a reasonable moral choice not to comply …
On the assumption that people should only be held responsible for their actions
where they have a choice, the assessment of whether an agent is responsible will
depend on whether reasonable alternatives are open – that is, whether the agent
had alternatives that did not involve a high probability that there would be a high
price to pay for choosing that alternative course of action.
(May (2005), Crimes Against Humanity, p. 193)
So May offers a particular account of what it is to have a moral alternative,
namely an alternative that is (a) morally permissible and (b) does not involve
significant costs to the agent.
May draws a comparison with the tort law notion of a ‘duty of care’ to
support his account, defending this comparison (which usually speaks to
the accidental infliction of harms) by arguing that what we want to know in
war crimes trials is whether the combatants are guilty of ‘moral negligence’.29
Did the combatants in My Lai, for example, have a duty to do more to
ascertain whether the villagers were armed, such that their failure to take
these additional steps counts as negligence? In tort law, May says, ‘To
ascertain if one had such a duty, one looks, among other things, at what the
burden would have been to the agent if the agent had conformed to the
duty.’30 When this burden would have been very great, we do not deem the
agent negligent if she does not bear it:
When we speak of whether a person had a moral choice or not, normally we mean
whether the alternatives open included ones that were morally permissible. In
addition, at least part of the concept of moral choice concerns whether there were
alternatives open that could be considered reasonable. In most situations, it is not
part of one’s moral choices, and hence too much to expect, that one should have
done something highly dangerous, or otherwise unreasonable. If the only way we
can avoid harming another person is to put our own lives in grave jeopardy, then
it is not a moral choice to avoid harming this other person.
(May (2005), Crimes Against Humanity, p. 193)
May illustrates this idea by hypothesising a case in which three bank robbers
recruit a fourth person, Green, to act as their getaway driver. The four clearly
conspire with respect to the robbery, and are collectively responsible for it.
But May suggests that this responsibility would not necessarily cover all the
results of the robbery. Imagine that as the four drive off, a pedestrian begins
to cross the road, right in the car’s path. Green begins to apply the brakes to
avoid hitting the pedestrian, but the gang’s ringleader, Jones, holds a gun to
254 Jus post bellum
Green’s head and orders her to drive on. May argues that while Green clearly
had a choice about whether or not to conspire in the robbery, she had ‘not
much of a choice, if she had a choice at all, about whether to run down the
pedestrian’.31
In comparable cases in war, where a combatant’s own life is threatened
should she fail to obey an order, May claims that ‘the same conditions
should be operative, making us reluctant to say that, in such situations,
there is a moral choice available to the soldier’.32 A combatant might be
responsible for getting himself into a combat situation. But this does not
make him responsible for the things that he does under proportionate
duress.
I am not sure that we can use the tort law notion of a duty of care in the
way that May thinks. Negligence usually consists in an omission that leads
to the accidental infliction of harm (for example, a failure to follow safety
procedures leads to an explosion at a factory). But this doesn’t mean that
all harms that result from omissions count as negligent harms. Intentionally
inflicting harm upon a person seems to me to fall outside the remit of
negligence, even if it results from a failure to check that the person really is
a threat.
Moreover, even if we did accept that intentionally inflicting harm on
someone can count as negligence, May is wrong that the duty of care
cannot require me to place my own life in grave danger. If I am having
some kind of medical emergency and can get myself to the hospital only by
driving my death-trap of a vintage car while suffering crippling pain and
seizures and unable to find my glasses, the duty of care will not tell me
that, given the cost to me of not getting to the hospital, I may drive the
car. Rather, it will prohibit driving the car and will do so even though
I would not be intending to cause any harm at all. So even if it were
appropriate to apply a tort law standard to the intentional infliction of
harm, it doesn’t follow that I may cause serious harms to others in order to
avoid similar harms to myself.
May’s position also generates rather worrying implications in cases such
as Javelin:
Javelin
A javelin is heading towards you. Only by grabbing hold of a
bystander, and using her as a human shield, can you save your own
life.
There doesn’t seem to be anything in May’s account that rules out grabbing
the bystander and using her to save oneself. But we do not usually think that
the fact that I will be killed unless I kill an innocent bystander means that I
have no real choice but to kill the bystander. Killing the bystander seems
Jus post bellum
255
clearly morally impermissible. And I suspect that many of us would be rather
sceptical of an appeal to irresistible duress in such a case. The pressures of war
are of course different from the pressures of everyday life. But would we
accept a plea of duress from a soldier who, say, used a civilian as a human
shield? Even with the pressures we can imagine – a hail of bullets, bombs
exploding and so on – it seems hard to accept that a soldier had no real
alternative – no morally viable option – other than to grab a civilian and use her
body to shield himself from the bullets. It seems to me that sometimes
sacrificing one’s own life just is the only morally available option.
Command responsibility
We might think that it is only when a commanding officer orders his troops to
commit a war crime that he can plausibly be held responsible for that crime.
But international law does not endorse this view. Rather, the principle of
command responsibility holds that commanders can be responsible for wrongs
that their troops commit even if those wrongs were not the result of orders.
David Luban outlines three ways in which a commanding officer can be
found guilty of a crime committed by his troops.33 The first is to construe a
failure to prevent or punish a war crime as being an accessory to the crime
on the grounds that it implies some degree of complicity. The second is to
construe the failure to punish or prevent a war crime as a crime in itself – as
a criminal dereliction of duty. The third is to hold a commander vicariously
liable for the crimes committed by those under his command. Luban
describes this as the most radical application of the principle, ‘because it
convicts the commander for the soldier’s crimes, as though the soldier were
a mere extension of the commander rather than an independent intervening
decision maker’.34
The most famous conviction on the basis of command responsibility is
that of General Yamashita. Yamashita was convicted of war crimes
committed by his troops in Singapore and Manila during the Second World
War. The case is controversial because Yamashita was not present when the
attacks in Manila took place, having been forced to retreat by Allied forces.
He did not order the attacks; indeed, the actions of the Allies meant that he
was unable to communicate with his troops at all. But the court found that
Yamashita was responsible for the crimes on the grounds that he should
have trained his troops in such a way that they did not engage in atrocities
even when they were outside his direct control. As Luban puts it, ‘the wide
scope of the atrocities is evidence of a prior command failure, not individual
soldiers run amok’.35
It is certainly true that the general participation in the slaughter suggests
a systemic lack of discipline amongst Yamashita’s troops. But holding him
responsible for any and all consequences that arise from this lack of
256 Jus post bellum
discipline is to impose what Luban calls an ‘unforgiving’ standard upon
commanding officers. Can the use of such a standard in the case like
Yamashita’s be justified? Luban argues that it can, because a commander
‘wields an instrument with the power of life and death’.36 A good way to
make sure that he wields this instrument carefully is to make him
responsible for all that it does.
Walzer, by contrast, argues that while we should require commanding
officers to take appropriate measures to control their troops, this does not
mean that they must do everything that they can to this end. Taken literally,
this would leave commanders no time to get on with fighting the war. And
even if they were to do everything possible, this would not guarantee
success. All we can ask, says Walzer, ‘is serious efforts of specific sorts; we
cannot require success, since the conditions of warfare are such that success
isn’t always possible’.37 Walzer claims that Yamashita should have been
exonerated and that his trial should have triggered careful reflection about
the limits of command responsibility.
Amnesties
The number of war crimes cases tried by criminal tribunals is comparatively
small. Places such as the former Yugoslavia and Rwanda saw thousands of
breaches of the laws of armed conflict, but only a handful of perpetrators have
been prosecuted. There are various reasons for this. Some are financial – it
simply isn’t viable to prosecute all those suspected of war crimes. But there are
other considerations in play as well. Reconciliation has become the focus of
much of the reconstruction in places like Rwanda, and also in post-apartheid
South Africa. Subjecting all those accused of war crimes to criminal trials
would take decades, keeping the conflict in the front and centre of people’s
minds and hampering development in other areas. Mexican President Vicente
Fox describes this as the danger of governments getting ‘worn out and lost in
the past’.38
Because of concerns like these, some countries have offered amnesties
for those who have committed war crimes. These amnesties are sometimes
offered as part of a wider truth commission into humanitarian abuses. Truth
commissions are official, independent investigations into widespread abuses.
They are usually held after specific conflicts, but are sometimes established
after a country has undergone an extensive period of political violence. The
Truth and Reconciliation Commission (TRC) in post-apartheid South
Africa is generally regarded as a particularly successful example of what
truth commissions can achieve. Central to the TRC’s powers was the ability
to grant amnesties to those who confessed their roles in apartheid, provided
that they were able to show that they acted for political (rather than
personal) reasons. Though controversial, the system of amnesties enabled
Jus post bellum
257
the TRC to process a vast number of accusations in a fraction of the time
(and for a fraction of the expense) that it would have taken to bring
criminal trials against all those accused of atrocities.
The granting of amnesties is controversial because of the kind of
concerns that Orend identifies in his account of jus post bellum. Many
people think that the victims of abuse have a right to see their abusers
punished, and that granting self-confessed war criminals amnesty exacerbates
the injustice done to those who have suffered persecution. Amnesties allow
war criminals to go back to living their ordinary lives, often amongst the
victims of their crimes.
But those in favour of amnesties, and truth commissions more generally,
argue that there are different sorts of justice, and that criminal trials are
often not the best way to foster reconciliation. For example, May argues
that post-conflict regions should seek restorative justice rather than
retributive justice, since it is restorative justice that ‘corresponds to
reconciliation, in that restorative justice seeks to remedy the effects of
injustice by restoring the society to order’.39 According to May, victims of
abuse may find that they need not only to forgive, but also temporarily to
forget, the wrongs that they have suffered. This temporary amnesia can be
essential if a country is to reach a point at which it is able to confront the
injustices of its past without simply imploding into further violence.
Amnesties are one way in which a country can build upon what is often a
fragile peace.
But what about the rights of victims in these cases? Do the victims of
war crimes have a right to insist that their governments do not grant
amnesties because they have a right to see their abusers prosecuted?
Christopher Wellman argues that there ought to be a presumption against
amnesties in the aftermath of conflicts, and thus they should be offered
only when doing so is necessary for the achievement of some suitably
important good. But he also argues that the interests of victims in seeing
their abusers prosecuted do not amount to a right that they be prosecuted.
States, not individuals, have authority over who is to be subjected to
criminal trials within their territory:
And if government officials are well within their rights when they elect not to
press charges against a potential defendant (if they decide that it would not be
possible to build a sufficiently compelling case against the criminal, for instance),
then a state’s decision to grant amnesty to a large group of rights-violators
(because its legal system could not feasibly manage such a massive load of cases,
for example) appears to be just a larger example of what is commonly understood
258 Jus post bellum
to be squarely within a state’s legitimate sphere of sovereignty over its exercise of
the criminal law.
(C. Wellman (2008), ‘Amnesties and international law’.
In L. May, War: Essays in Political Philosophy. New York:
Cambridge University Press, p. 254)
Wellman is at pains to emphasise that he is talking about the rights of legitimate
states to decide against pursuing prosecutions, where a legitimate state is one
that protects its people’s basic rights. A corrupt state that systematically failed
to prosecute wrongdoing would not be safeguarding those rights and would
cease to be legitimate. Amnesties from a state like this would lack genuine
legal or moral force. And, as mentioned above, Wellman thinks that even
legitimate states ought to grant amnesties only when there are very weighty
reasons for doing so. But when they are granted, they do not violate the rights
of victims, since victims do not have a right to prosecution.
Wellman claims that this argument also applies to foreign governments
who might try to pressure a country into prosecuting its war criminals. Since
war crimes fall under international jurisdiction, it is theoretically possible for
any country to prosecute someone accused of such crimes even if they have
been granted amnesty by their own state. Amnesties are not legally binding
upon other states. But Wellman argues that other states should nonetheless
generally respect amnesties, and gives rather short shrift to the notion that
there are some crimes that harm humanity at large, which the international
community might thus be entitled to see punished. There is, he says, no
persuasive account of (so-called) crimes against humanity that shows that ‘an
average citizen in Australia, say, is necessarily harmed by even the most
horrific crime perpetrated against either a Jew in Germany or a Kurd in Iraq’.40
Again, these foreign states and their citizens might have an interest in
seeing justice done – accountability for wrongdoing is genuinely important.
But this does not amount to their having a right that prosecutions should
take place. When such prosecutions will jeopardise the post-conflict region’s
chances of recovery, a government can have good reason to grant war
crimes amnesties. And, indeed, Wellman argues that it is not only when an
amnesty is rational, or in the country’s best interests, that the international
community ought to respect it. What matters is that the amnesty reflects
the will of the people: it is, he says, ‘up to a country’s own people to make
the difficult choices about how to pursue the various (and often mutually
exclusive) goals of retributive justice, reconciliation, peace, and stability’.41
As an example of why a state might grant an amnesty, Wellman imagines
a tyrannical dictator who can be persuaded to leave office only if they are
promised amnesty from subsequent prosecution. If this is the best way to
prevent more humanitarian abuses and allow the country to establish a
better regime, the balance of considerations might well tip in favour of
Jus post bellum
259
offering the dictator an amnesty. The good of achieving justice for the past
might be outweighed by the good of preventing future crimes.
Of course, we might think that, once the dictator willingly leaves office,
there is no reason why another state should not, all the same, indict them on
charges of crimes against humanity. After all, crimes against humanity, like war
crimes, fall within the jurisdiction of all states. But while this might seem
appropriate in a specific case, Wellman argues that making such prosecutions
the rule would undermine the efficacy of amnesties as a way of ending
tyrannical regimes. Amnesties will have value only if they are respected by
other states, and the international community should not act in a way that
prevents vulnerable states from making use of such a potentially powerful tool.
Chapter summary
The ending of war and the establishing of a just peace raise their own set of
moral and legal issues. The traditional minimalist approach to a victorious
state’s obligations has largely given way to maximalist views that impose a
fairly demanding set of positive duties upon those who defeat aggression. In
particular, many maximalist accounts of jus post bellum require the victor to
undertake at least some kind of political reconstruction, even in the aftermath
of humanitarian intervention. Maximalists also include an obligation to punish
both the initial aggression and any subsequent war crimes. However, as we
saw in the second part of the chapter, it is unusual for low-ranking combatants
to be subjected to criminal trial. Throughout most of history, the superior
orders defence has given combatants immunity for wrongs that they commit
under orders. Even with the tightening up of this defence in the later part of
the twentieth century, most war crimes trials have continued to focus upon
high-ranking combatants and political leaders.
Questions for discussion
1
2
3
4
Does a country that successfully defeats aggression incur obligations
of reconstruction in the defeated country? If so, why?
Who should bear the costs of justified humanitarian interventions?
Should General Yamashita have been convicted of the crimes
committed by his troops?
Do victims of war crimes have a right that the perpetrators be
prosecuted? If so, does this right mean that governments may not
grant amnesties for such crimes?
260 Jus post bellum
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
A. Bellamy (2008), ‘The responsibilities of victory: jus post bellum and the just war’, Review of
International Studies 34, 601–25, p. 605.
B. Orend (2007), ‘Jus post bellum: the perspective of a just-war theorist’, Leiden Journal of
International Law 20, 571– 91, p. 579.
Bellamy, ‘The responsibilities of victory: jus post bellum and the just war’, p. 605.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, pp. 580–1.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 580.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 580.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 580.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 580.
M. Walzer (1977), Just and Unjust Wars. New York: Basic Books, p. 105.
B. Orend (2000), ‘Jus post bellum’, Journal of Social Philosophy 31, No. 1, 117–37, p. 122.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 581.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 126.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 126.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 126.
Orend, ‘Jus post bellum: the perspective of a just-war theorist’, p. 126.
See Bellamy, ‘The responsibilities of victory: jus post bellum and the just war’, pp. 619–20, for a
discussion of this criticism.
G. Bass (2004), ‘Jus post bellum’, Philosophy and Public Affairs 32, No. 4, 384–412, p. 407.
M. Walzer, Preface to the third edition of Just and Unjust Wars. New York: Basic Books, 2000,
p. xv.
Walzer, Preface to the third edition of Just and Unjust Wars, p. xiii.
A. Bellamy (2006), Just Wars: from Cicero to Iraq. Cambridge: Polity Press, p. 214.
In discussion at the 12th International Law and Ethics Conference, Belgrade, June 2010.
L. F. L. Oppenheim (1912), International Law: A Treatise, Vol. 2: War and Neutrality. 2nd edn,
London: Longmans, Green and Co., p. 310.
S. P. Huntington (1957), The Soldier and the State: the theory and politics of civil–military relations.
Cambridge, MA: Harvard University Press, p. 78.
‘Serbs jailed for using rape as “weapon of terror”’, The Independent, 23 February 2001.
See A. Kentaro, ‘The Tokyo tribunal, war responsibility and the Japanese people’. Trans. T.
Amos, available at http://www.japanfocus.org/Awaya-Kentaro/2061 (accessed 10 July 2010).
L. May (2005), Crimes Against Humanity: a normative account. New York: Cambridge University
Press, p. 184.
May, Crimes Against Humanity, p. 186.
May, Crimes Against Humanity, p. 186.
May, Crimes Against Humanity, p. 192.
May, Crimes Against Humanity, p. 192.
May, Crimes Against Humanity, p. 192.
May, Crimes Against Humanity, p. 192.
D. Luban (2008), ‘War crimes: the law of hell’. In L. May (ed.), War: Essays in Political Philosophy.
New York: Cambridge University Press, p. 282.
Luban, ‘War crimes: the law of hell’, p. 282.
Luban, ‘War crimes: the law of hell’, p. 283.
Luban, ‘War crimes: the law of hell’, p. 284.
Walzer, Just and Unjust Wars, p. 321.
‘Mexico considers Truth Commission’, Human and Constitutional Rights resource page, 2001,
available at http://www.hrcr.org/hottopics/mexico.html (accessed 16 July 2010).
May, Crimes Against Humanity, p. 244.
C. H. Wellman (2008), ‘Amnesties and international law’. In L. May (ed.), War: Essays in Political
Philosophy. New York: Cambridge University Press, p. 258.
Wellman, ‘Amnesties and international law’, p. 263.
Jus post bellum
261
Suggested reading
Alex Bellamy (2008), ‘The responsibilities of victory: jus post bellum and the
just war’, Review of International Studies, 34, pp. 601–25.
Bellamy gives an interesting summary of the historical path of jus post bellum,
and argues against viewing jus post bellum as a third component of just war
theory.
Brian Orend (2007), ‘Jus post bellum: the perspective of a just-war theorist’,
Leiden Journal of International Law, 20, pp. 571–91.
Orend outlines various issues in jus post bellum and defends his own maximalist
account.
Larry May (2005), Crimes Against Humanity: a normative account. New York:
Cambridge University Press.
Chapter 10 has a discussion of the superior orders defence, and Chapter 13
deals with amnesties and reconciliation.
Christopher Heath Wellman (2008), ‘Amnesties and international law’. In
Larry May (ed.), War: Essays in Political Philosophy. New York: Cambridge
University Press.
May offers a defence of amnesties on the grounds that victims and other states
lack a right for war crimes to be prosecuted.
Unit 9 - Nuclear War & Jus Post Bellum
Tasks
•
•
•
•
Read the Unit 9 Course Notes (which include readings and videos).
Read Frowe, pp.239-261.
Make your Discussion Post for Unit 9.
Essay 2 is due next week, so start preparing.
Outline
9.0. Outline, Readings, Glossary
9.1. Nuclear War
9.2. Case: Questions about Hiroshima
9.3. War Fighting
9.4. Nuclear Omnicide
9.5. Nuclear Deterrence and Just War
9.6. What if Deterrence Fails?
9.7. Reading: Carl Sagan, "Who Speaks for Earth?"
9.8. Jus post Bellum: Traditional
9.9. Jus post Bellum: Orend
9.10. War Crimes
9.11. Conclusion, Questions, References
Readings
Frowe, Helen (2016). The Ethics of War and Peace: An Introduction. New York:
Routledge, pp.239-261 (Chap.12).
9.7. Sagan, Carl (1980). "Who Speaks for Earth?" Cosmos, chap.13. New York:
Random House, pp.320-345 (excerpts).
Videos
9.1. Rush - Manhattan Project (1985, 5:06 min. YouTube, Required).
9.1. The Road to Total War (1983, 54:08 min. Gwynne Dyer, YouTube, Required).
Take a Moment
TM-15 in 9.6.
Learning Outcomes
After completing this unit you will be able to:
•
•
•
•
Evaluate the decision to drop the atomic bomb on Hiroshima in its
historical context.
Debate the merits of war-fighting, nuclear pacifism, and nuclear
deterrence as approaches to the danger of nuclear war.
Describe the risk and likely outcome of a full-scale nuclear war,
Evaluate the traditional approach and Orend's approach to jus post
bellum.
Case Studies
9.2. Hiroshima and Nagasaki
9.3. New York (hypothetical case)
9.6. Cuban Missile Crisis
9.8. Punic Wars, War of 1812 vs. World War I, Iraq War
9.9. Franco-German Reparations history
9.10. My Lai Massacre, General Yamashita, Milosevic vs. Albright
Glossary Terms
9.1. Nuclear Terms (12 listed)
9.2. Operation Olympic, Ketsu-Go, Proportionality
9.3. Nuclear War Fighting, Deterrence Only (MAD), Superiority
9.4. Omnicide, No First Use
9.5. Nuclear Deterrence, Inferiority, Paradox of Deterrence
9.5. Deterrence & Just War, Nuclear Pacifism
9.6. Catastrophic Risks
9.8. Jus post Bellum, Minimalist vs. Maximalist, Carthaginian Peace
9.9. Rights Vindications, Compensation vs. Discrimination, Reparations, Marshall
Plan
9.9. Punishment and Rehabilitation vs. No Unconditional Surrender
9.10. Superior Orders Defence, Command Responsibility, Amnesties
9.10. Punishment (Incapacitation, Deterrence, Retribution)
Persons of Note
9.2. Michael Bess, Harry Truman, Emperor Hirohito
9.3. Herman Kahn
9.4. John Somerville
9.5. Jan Narveson, Michael Walzer
9.6. Carl Sagan
9.8. Alex Bellamy, Vattel
9.9. Brian Orend
9.10. Larry May, Slobadan Milosevic, Madeleine Albright
9.1. Nuclear War
Unit 9 covers two completely different topics - Nuclear War and Jus post
Bellum. The only link is the common theme of ending, since full-scale nuclear war
risks ending human civilization, while jus post bellum is about dealing with a
defeated nation after war. Our first 7 sections concern nuclear war, while Frowe
chap.12 and the rest deal with justice after war.
This section is an introduction to nuclear war, with focus on its links to total
war and on defining key terms. Sections 9.2 discusses the ethics of the use of
atomic weapons against Japan in 1945, with attention to the context in the
Pacific War (i.e. the battle between the US and Japan in WW2). Sections 9.3 to
9.5 look at three approaches to nuclear war during the Cold War:
1. planning to fight and win a nuclear war
2. nuclear disarmament and renouncing the use of such weapons
3. nuclear deterrence based on mutual assured destruction
Section 9.6 considers the risk of deterrence failing. Section 9.7 is a reading
from Carl Sagan's Cosmos, which looks at nuclear war from the perspective of
science and human evolution, and as a threat to our survival.
Rush - Manhattan Project (1985, 5:06 min. YouTube, Required)
https://www.youtube.com/watch?v=znr4yylgGH0
To begin, here is a song about the development and use of the first atomic bomb.
"Shot down the rising sun" refers to the flag of Japan. The Enola Gay is the
plane that dropped the A-bomb on Hiroshima. Rush are a Canadian rock band whose
songs often contain thoughtful lyrics.
Imagine a time
When it all began in the dying days of a war
A weapon, that would settle the score
Whoever found it first
Would be sure to do their worst
They always had before
Imagine a man
Where it all began
A scientist pacing the floor
In each nation, always eager to explore
To build the best big stick
To turn the winning trick
But this was something more
The big bang, took and shook the world
Shot down the rising sun
The end was begun, it would hit everyone
When the chain reaction was done
The big shots, try to hold it back
Fools try to wish it away
The hopeful depend on a world without end
Whatever the hopeless may say
Imagine a place
Where it all began
They gathered from across the land
To work in the secrecy of the desert sand
All of the brightest boys
To play with the biggest toys
More than they bargained for
The big bang, took and shook the world
Shot down the rising sun
The hopeful depend on a world without end
Whatever the hopeless may say
Imagine a man
When it all began
The pilot of Enola Gay
Flying out of the shock wave
On that August day
All the powers that be
And the course of history
Would be changed for evermore
The big bang, took and shook the world
Shot down the rising sun
The end was begun, it would hit everyone
When the chain reaction was done
The big shots, try to hold it back
Fools try to wish it away
The hopeful depend on a world without end
Whatever the hopeless may say
The big bang, took and shook the world
Shot down the rising sun
The hopeful depend on a world without end
Whatever the hopeless may say
Nuclear Terminology
Below are 12 key concepts or weapons that are essential to understanding the
nuclear arms race and the cold war. They are arranged partly in chronological and
partly in thematic order.
Manhattan Project
A research and development program during World War II that produced the first
atomic bomb. It was led by the US with support from Britain and Canada, and the
work centred in Los Alamos, New Mexico (Manhattan was just a codename).
Atomic Bomb (A-bomb) - Little Boy and Fat Man
Little Boy, dropped on Hiroshima, was based on the fission of uranium. Fat Man,
dropped on Nagasaki, was an implosion-type nuclear weapon with a plutonium core.
Hydrogen Bomb (H-bomb) - Thermonuclear Weapons
Second generation nuclear weapon developed in the early 1950's, with much more
destructive power. They release energy from the nuclear fusion of isotopes of
hydrogen.
V-2 Rocket
Long-range ballistic missile, developed by the Germans in World War II. First
used in September 1944 against London and other cities, they came too late in the
war to make a difference. The technology laid the foundation for American and
Russian missile and rocket programs.
ICBM - Intercontinental Ballistic Missile
Guided missiles equipped with H-bombs that could hit targets on the other side of
the world. They became the main weapon in the Cold War from the early 1960's
onward.
Nuclear Triad
The ability to deliver nuclear weapons in three ways - from land-based ICBM,
strategic bombers, and submarines. This reduces vulnerability from an enemy first
strike, ensuring some forces would be available to retaliate.
MAD - Mutual Assured Destruction
The basic idea underlying Nuclear Deterrence. Accepts that we can't defend out
people or win a nuclear war, and seeks to deter any nuclear attack by vowing
massive retaliation.
Unilateral Nuclear Disarmament
For a single country to disarm or renounce nuclear weapons, without seeking
equivalent concessions from others. Contrasts with multilateral disarmament or
arms control through international agreement.
Strategic Defence Initiative (Star Wars)
Anti-ballistic missile defence system proposed by President Reagan in the early
1980's, which was intended to destroy incoming missiles from space. Critics
questioned the feasibility of the plan and predicted it would merely fuel the
arms race.
Nuclear Winter
Theory proposed in the early 1980's, that nuclear war on any large scale would
lead to a period of global cooling, caused by soot from fires gathering in the
stratosphere and blocking sunlight. The result would be crop failures and famine.
Nuclear Proliferation
This refers to the spread of nuclear weapons, fissionable material, and weaponsrelated nuclear technology to additional parties beyond the existing nuclear
powers.
Non-Proliferation Treaty (NPT)
Signed by almost every nation including Canada, the NPT (1968) is an arms-control
agreement in which nuclear powers pledge not transfer or spread nuclear weapons,
and non-nuclear states pledge not to acquire them.
Video: The Road to Total War
For an overview of the development of Total War from Napoleon to the trenches of
WW1, the bombing of cities in WW2, and the nuclear threat of the Cold War, watch
Part 1 of Gwynne Dyer's series On War.
The Road to Total War (1983, 54:08 min. Gwynne Dyer, YouTube, Required)
https://www.youtube.com/watch?v=tPnppCelvk0
Questions for Discussion 1
a. Watch the video The Road to Total War and sum up its main thesis and 3 things
about history that you learned or that stood out for you.
b. Bomber Harris says: "Tell me one operation of war which is moral. One operation
of war. Sticking a bayonet into a man's belly, is that moral?" (The Road to Total
War, 48:56-49:15 min.) Is that a good point against those who assert the special
wickedness of bombing civilians?
9.2. Case: Questions about Hiroshima
"By the worst means, the worst. For mine own good,
All causes shall give way: I am in blood
Stepp'd in so far that, should I wade no more,
Returning were as tedious as go o'er."
Shakespeare, Macbeth, Act 3, Scene 4
In retrospect, the atomic bombing of Hiroshima and Nagasaki seems like a horrible
thing. Surely there must have been a better way to end World War II, right? The
natural humane reaction is amplified by a number of other factors.
(1) Just War theory since WW2 emphasizes that it is wrong to intentionally target
civilians. Michael Walzer condemns this action, since the US was not facing a
Supreme Emergency at the time. We already mentioned Elisabeth Anscombe's
opposition to President Truman receiving an honorary degree, based on the fact
that he gave the order to drop the atomic bombs (section 8.4).
(2) Japan has been a peaceful country and friend of the US and Canada for over 70
years. Their behaviour during WW2 and our view of Japan during the war seem like
something from the distant past. The lead-up and context of Hiroshima has also
faded from memory.
(3) Most importantly, there is a widespread sentiment that using nuclear weapons
is taboo, and this is even stronger in regard to initiating their use and
destroying cities. They are not just another weapon, but a threat to civilization
itself. Humanity has avoided using them since 1945, and most of us want to keep
it that way. So we view Hiroshima through the lens of a nuclear taboo that
developed after WW2.
From a utilitarian perspective, it is a Good Thing that most people view the use
of atomic weapons on Japanese cities as a Bad Thing that must never be repeated.
That reading of history helps to keep the danger of future nuclear war in check.
However, when you look at the decision to drop the A-bomb in context, a decent
case can be made that it averted more killing and harm than it cost, and was
thus proportionate and justified in utilitarian terms.
Seen as the first act of the nuclear age, the bombing looks like a crime. Seen as
the final act of a Total War that had taken the lives of millions of conscripts
and civilians, it is easily understood. In terms of the Macbeth quote leading
off this section, the Allies had already waded through oceans of blood in
conducting the war, and were only seeking the shortest, least bloody, route to
the opposite shore.
The rest of this section is based on a book by American historian Michael
Bess, Choices Under Fire: Moral Dimension of World War II (2006), which
contains a 65 page analysis of the decision to drop the bomb in terms of the
historical context and alternatives.
The Decision to Drop the Atomic Bomb: Twelve
Questions
(1) Was it necessary to drop the bomb in order to get the Japanese
to surrender?
No, but the alternatives were either costly in terms of lives lost
in terms of success.
or dubious
"By the summer of 1945, American leaders had a full-scale plan in place for the
invasion of the Japanese home islands ... The first phase of the planned
invasion, code-named Operation Olympic, was set for November 1, 1945. It would
involve a large amphibious assault, dwarfing even the D-Day operation of 1944 in
France; the target would be the southernmost of the Japanese home islands,
Kyushu. Once Kyushu had been seized by Allied forces, the plan called for this
island to serve as a forward base for a second and definitive attack, codenamed
Coronet, scheduled for the spring of 1946. Coronet would entail a final push
across the remainder of Japanese home territory, culminating in the imposition of
terms on a prostrate nation sometime in 1946. The Allies had done this to
Germany, and they were determined to do it to Japan as well. ...
[The Japanese] still held out hope that, through a combination of diplomacy and
indomitable resistance, they could compel the Allies to accept a negotiated peace
settlement [that] would have to include the following:
•
•
•
a guarantee that Hirohito could remain on the throne;
no occupation of the Japanese home islands;
the Japanese government would control the postwar demobilization process; and
•
all trials of military and civilian leaders would be held by Japanese courts." (Michael
Bess, pp.200-201)
(2) Was this weapon qualitatively different from all the other weapons
used during the war?
Not really. Its effects were comparable with previous area bombing and
firebombing of German and Japanese cities. These included the following deaths
totals: Tokyo (100k), Dresden (60k), Hamburg (45k), all Japanese cities from
January-July 1945 (200k-300k). In comparison, the estimates for the nuclear
bombing of Hiroshima are 70k-200k, Nagasaki 40k-140k, with the highest figure
including lives shortened by radiation, cancer, and so on.
The two main differences between Hiroshima and conventional bombing were the long
term health impact (unknown at the time) and the ability, with just one bomb, to
do damage equivalent to that inflicted by 1000 heavy bombers carrying over 2000
tons of high-explosives and incendiaries. It's true that nuclear war involving
large arsenals of H-bombs came to be qualitatively differently from conventional
war by the 1950's, but we're talking about Little Boy and Fat Man here.
(3) Did the use of the bomb speed up the Japanese surrender?
Yes, it almost certainly did. Prior to being A-bombed, Japan's leaders were
strongly adverse to surrender. They were planning for a desperate, bloody, lastditch defence of the home islands, known as Ketsu-Go.
"Surrender was widely regarded by Japanese soldiers as the ultimate dishonor, a
stain on a man's character to be avoided at any cost: the island campaigns in the
Pacific had rendered this widespread mentality horrifyingly evident. Again and
again, Japanese garrisons fought to the end, preferring almost any kind of death,
including suicide, rather than facing the dishonor of being captured alive. The
result was a recurrent fatality rate among the Japanese rarely before seen in the
history of warfare: in the Gilbert Islands campaign, 99.7 percent killed; on
Makin Island, 99 percent killed; in the Marshall Islands campaign, 98.5 percent
killed; at Kwajalein, 98.4 percent killed; on Saipan, 97 percent killed. Even
when defeat became a virtual certainty, Japanese soldiers fought on, sometimes
launching a final suicidal banzai charge, sometimes committing hara-kiri before
capture. ...
Not surprisingly, this mentality applied to the defense of the home islands with
an even greater conviction ... The army and navy leaders, during the late spring
of 1945, developed a detailed plan for this last-ditch defense of the homeland:
they code-named it Ketsu-Go (Operation Decisive). Their logic for Ketsu-Go was
straightforward. If we can convince the Allies that we will never give up, they
will see no alternative but to launch a direct invasion of Japan ... And if we
can render that invasion sufficiently bloody for them - costing them thousands
and thousands of lives, day after day - then there is a good chance that at some
point they will be forced to soften their terms, and will become willing to
accept our conditions for a negotiated peace. ...
Accordingly, preparations for Ketsu-Go received top priority in the Japanese war
effort during the late spring and summer of 1945. ... They also started training
the civilian population - both on Kyushu and on the other Japanese home islands to participate directly in the coming military operations, thereby effectively
turning millions of former noncombatants into a vast guerrilla force to bleed the
invading enemy. ... Finally, there were the kamikazes, who would be brought out
in unprecedented numbers, with orders to aim at both the Allied ground troops and
the ships assembled offshore. (Michael Best, pp.211-213)
It took a series of severe shocks to bring about Japan's surrender:
•
August 6 at 8:15 am, the Enola Gay dropped the first atomic bomb on Hiroshima.
• August 8, the Soviets entered the war with a massive attack on the Japanese army in
China.
• August 9, the second atomic bomb was dropped on Nagasaki.
• August 10 at 2 am, with Japan's Imperial War Council deadlocked at 3-3, Emperor
Hirohito broke with protocol and told them it was time to end the war.
The bomb destroyed the rationale for Ketsu-Go. If the Americans could keep wiping
them out with the power of nuclear science, they would never need to launch a
costly invasion.
(4) Were there plausible alternatives for achieving surrender without
dropping the bomb?
(5) Did the atomic bombing of Japan, by shortening the war, result in
a net saving of lives?
Yes, there were at least 5 options. However, the 3 military options involved more
casualties than dropping the bomb. The other 2 options were either unlikely to
work or not politically feasible.
1. Soviet Shock Scenario
The idea is that Soviet entry into the Pacific War would lead rapidly to
devastating Japanese losses in China and the threat of Russia joining in the
invasion of Japan. This might convince the Japanese to surrender within a few
months. Estimated death toll: 850,000.
"Even if we assume a relatively early Japanese surrender date of September 15
under this "Soviet shock" scenario, a conservative estimate of the resultant
death toll would run something like this: another 30,000 Japanese civilians
killed through conventional bombardment of the home islands; 500,000 Japanese
soldiers killed in China; 70,000 Soviet soldiers killed in battle; 100,000
Chinese civilians killed in the crossfire or through war-related actions; 100,000
Asian noncombatants outside China (including a smaller number of Allied POWs)
dying through maltreatment under Japanese occupation; another 50,000 Japanese
dying in Soviet captivity. The total adds up to about 850,000 lives (of which a
significant portion would be civilians) - and this is erring considerably on the
low side of the plausible." (Michael Bess, pp.232-233)
So even if the war lasted another month, the results of Russia fighting Japan in
China would likely have killed more people than the A-bombs. We could add in
likely casualties from Operation Zipper, the British plan to invade the Malay
Peninsula on September 9, which was expected to take until March 1946 to liberate
Singapore.
2. Operation Olympic, the Invasion of Japan
What if Soviet Shock failed to end the war, and Operation Olympic went ahead on
November 1? Contemporary estimates of a 500,000 casualties among Allied troops
are now considered too high, but it would have been a bloodbath for the Japanese.
Conservative estimate for taking of Kyusho plus Soviet shock: 1.4 million.
"If we simply apply the Okinawa percentages to Kyushu, we get 517,000 Japanese
soldiers killed; 750,000 Japanese civilians dead; 53,000 American troops and
naval personnel killed. A total of 1.3 million dead. Richard Frank offers a more
conservative assessment ... [that] at least 200,000 Japanese soldiers and 380,000
civilians would have died, while American battle deaths would lie in the vicinity
of 33,000. A total of 613,000.
But these numbers, of course, yield a tally only for the Kyushu
operation itself, through late November or early December 1945. By that point in
time, however, most of the deaths incurred in the "Soviet shock" scenario would
also have taken place ... Thus, if we take Frank's conservative estimate and
couple it with the other deaths likely to have occurred in Japan, China, and the
rest of Asia by the end of 1945, we get an absolute minimum number that stands in
the vicinity of 1.4 million lives lost. (Michael Bess, pp.234-235)
3. Blockade and Bombard Japan into Submission
Suppose the invasion was deemed too costly. Wearing down and starving out the
Japanese through blockade and bombardment of infrastructure was another option,
slower and perhaps cruellest of all. Conservative estimate for blockade plus
Soviet shock: 1.8 million lives lost.
"Japan was in appallingly bad shape in the summer of 1945. The Allied campaigns
of bombardment and naval blockade were taking a terrible toll, and they would
have become ever more effective as the months went by ... The blockade imposed by
Allied navies had just about sealed off Japan's access to foodstuffs, oil, and
raw materials from outside the home islands. American submarines were sinking
Japanese merchant ships at devastating rates ... The Japanese, in short, were
moving down a path that led to death by starvation." (Michael Bess, p.221)
"If [Japan's] leaders held out into the spring of 1946, then the naval blockade,
coupled with continued bombardment and the near-total destruction of the nation's
transportation infrastructure, would probably have resulted in a famine of
catastrophic proportions, in which estimates of deaths run as high as 10 million
(one-seventh of Japan's population). Thus, if we conservatively estimate the
starvation deaths at only 10 percent of this number (i.e., 1 million), and couple
that number with those killed in the "Soviet shock" scenario, we have a final
tally on the order of 1.8 million dead." (Michael Bess, p.235)
From a just war perspective, it is noteworthy that all 3 scenarios result in more
deaths, not only for Allied soldiers and Japanese soldiers but among
Chinese/Japanese civilians. Ending the war with atomic bombs not only saved total
lives, but it saved civilian lives compared to any other military option.
4. Demonstrate the atomic bomb on an uninhabited target other than a city
This raises the hope of surrender without further bloodshed. But such a
demonstration was unlikely to have worked. The Japanese did not quit after the
firebombing of Tokyo or immediately after Hiroshima. So it's unlikely that
viewing a "large firecracker" with unknown effects would induce surrender.
The Americans saw other downsides. They had only two atomic bombs ready to go.
They had only performed one successful test (which was a different type of bomb
from Little Boy and the test didn't involve being dropped from a plane). The
Americans feared that an announced demonstration that turned out to be a dud
would only strengthen Japanese resolve. If the bomb worked but failed to the
induce surrender, they would have depleted their atomic arsenal by 50%.
5. Drop the demand for Unconditional Surrender and offer the Japanese
terms that they would accept
The Allies could have made peace by agreeing to terms such as no occupation of
Japan, no regime change, and no international war crimes trials. But this has
several downsides - one political, one moral, and one pragmatic.
First, the political one. Roosevelt, Churchill, and Stalin had agreed at
Casablanca in January 1943 that they would demand unconditional surrender from
the Axis Powers. In a June 1945 opinion poll, Americans were asked if they would
accept a compromise peace with Japan to shorten the war, and they rejected the
idea by a 9 to 1 margin. On the verge of victory, it would be very hard for
Truman to backtrack on a longstanding policy that had just been applied to
Germany, and without which the Nazis might have prolonged or covered up the
Holocaust. The Japanese were seen as fascists and militarists too, with the added
offences of their surprise attack to start the war and their abuse of AngloAmerican POW.
Second, the moral one. A compromise peace meant giving up on the Allied aim of
remaking Germany and Japan into peaceful and democratic societies. This was seen
as a way of redeeming all the suffering and bloodshed of the war. And with
victory so close and millions of lives already spent, why let the Japanese
militarists remain in power?
Third, the pragmatic one. Given the mentality of Japan's leaders, an easing of
Allied terms would be seen, not as a magnanimous offer, but as a sign of
weakness. Thus, even if the Americans had slightly softened terms by promising
that Japan could keep its Emperor (as they ended up doing), it is doubtful they
would have surrendered before the bombing of Hiroshima and Soviet entry into the
war. It would have taken more, such as giving up on occupation and regime change.
(6) Was the Nagasaki bomb necessary?
Probably yes. It depends on how you analyze the thinking of the Imperial War
Council. The hardliners dismissed the Hiroshima bomb as unique. By showing that
the US had more bombs and were willing to use them, the Nagasaki bomb
strengthened the hand of those who wanted to end the war.
This was the effect the Americans were hoping for. They only had two bombs ready.
Nagasaki was to be bombed August 11, but when a period of bad weather was
forecast, they moved it up to the 9th rather than back to the 15th, figuring
that: "The sooner we could get off another mission, the more likely it was that
the Japanese would feel that we had large quantities of the devices and would
surrender sooner."
(7) Was there a plausible alternative for achieving surrender with a
lower loss of life by using the bomb differently?
Maybe. Bess thinks a 1-2-3 punch of demonstrating the bomb on a non-urban target,
Soviet entry into the war, and the destruction of Hiroshima might have induced
surrender as quickly as actually bombing two cities.
If so, this would have spared Nagasaki. If not, the war is prolonged with more
casualties, and a second city is likely destroyed around August 21 when a third
bomb is ready.
(8) Did the US drop the bomb to intimidate the Soviets?
(9) Did the US rush to drop the bomb in the hope of bringing about
Japanese surrender before the Soviets could enter the Pacific War?
No. Even if postwar political leverage was in the back of the minds of some
American leaders, most historians agree that this was not their primary motive.
Their motive was military - to end the war quickly and decisively, with a minimum
loss of Allied troops. At this point, the Cold War had yet to begin.
"Foremost in Truman's mind was the desire to save American lives; but he also
wanted to break the power of the Japanese government in a decisive manner that
would pave the way for a thoroughgoing postwar reconstruction of the nation's
polity" (Michael Bess, p.242). Avoiding the need for the Soviets to conquer large
amounts of territory in East Asia was a bonus.
(10) Was the bomb used out of racism?
No, although there was an element of racial dehumanization on both sides in the
Pacific War. American hatred for "the Japs" ran deeper on the battlefield and in
public opinion than anti-German feeling, but this is partly due to how the
Japanese began the war with a sneak attack and how they abused Anglo-American
POW.
There was virtually no difference, however, in the conventional bombing that the
Allies were willing to inflict on Germany and Japan: "Allied aircraft carpetbombed and firebombed the cities of both nations with equal and impartial
destructiveness. ... There is no reason to believe that attitudes governing the
use of atomic bombs would have been any different" (Michael Bess, p.143).
(11) Did the use of this weapon violate the basic principles of a just
war?
Yes, the bombing violated jus in bello principles as normally interpreted. The
Americans directly targeted two cities with atomic weapons. The killing of
civilians was indiscriminate, it was foreseeable, and it was intended. You
might argue that their real intention was ending the war, but the harm to
civilians was an inescapable means to that end, making it inconsistent with
the Doctrine of Double of Effect.
On the other hand, if you are skeptical of the weight DDE puts on intention, or
see rules about civilian immunity as conventions which had already broken down
in WW2 as a result of Axis bombing and the waging of Total War by both sides,
then the debate about just war comes down to Proportionality. Bess writes:
"At one level, the atomic bombs dropped on Hiroshima and Nagasaki were extremely
"unproportional" devices, because they obliterated not only the military garrison
and war-related industries of these cities, but the entire cities themselves. ...
Total destruction of this magnitude was hugely disproportional to the attack that
the Japanese had leveled against the United States.
At another level, however, the atomic bombing of these two Japanese cities did
satisfy the criterion of proportionality, because it did not eliminate Japanese
society in its entirety, but only threatened to do so through a graduated and
continued use of these weapons. Although the destruction of the two targets
themselves was close to total, the impact of these attacks on the Japanese nation
as a whole remained proportionately limited: even after suffering this terrible
blow, Japan could go on existing as a viable polity. Thus, precisely because the
American attack came at the dawn of nuclear technology, and hence remained
unavoidably constrained by the short supply of these horrific new weapons, it did
not yet partake of the ecocidal quality that this technology would later acquire.
The atomic bombing of 1945 was still relatively limited in scope - it was not yet
an "instantaneous destroyer of entire nations" - and could therefore legitimately
claim an element of measure, of proportionality, as an instrument of warfare.
In brandishing this extreme threat of destruction, moreover, the United States
did succeed in achieving its immediate aim, which was to persuade the Japanese to
surrender. The means - destruction of two cities - was arguably proportional to
the vitally important goal of bringing the war to a swift end. ... Seen in this
light, therefore, the destruction of two cities, cruel as it was, could be
construed as a morally justifiable act because it probably resulted in a net
saving of human lives on an immense scale." (Michael Bess, pp.246-247)
(12) Was the dropping of the atomic bomb justified?
"Those who consider the dropping of the bomb an absolute evil usually rest their
case on the horror of what happened to hundreds of thousands of helpless
noncombatants on the ground. If this is not pure evil, they ask, then what in the
world is? This judgment, however - while understandable - fails to address one
key point: the war had to end, somehow. In one way or another, the Japanese had
to be brought to accept the need for surrender. Therefore, if we conclude that
dropping the bomb was absolutely wrong, we are unavoidably affirming that one of
the nonnuclear paths to surrender would have been morally preferable - even
though, as we have seen, it is probable that all those paths would have exacted
a much higher blood price than the path that led through Hiroshima and Nagasaki.
This is, without a doubt, a deeply problematic position to take. ...
William Styron, in his novel Sophie's Choice, depicts a situation in which an SS
man at Auschwitz forces a Polish woman to choose which one of her two young
children will go to the gas chambers, and which will be spared. If she does not
choose, he tells her, both children will go to the gas immediately. In a sense,
the culmination of the Pacific War in August 1945 places all of us - as we look
back in retrospective judgment on those momentous deeds - in an analogous
position. We are presented with an impossible decision among courses of action
that are all totally abominable. Either way we choose - kill 200,000, kill
340,000, kill 850,000, kill 1.8 million - we are in effect giving our assent to
an abomination, in which hundreds of thousands of innocents will suffer and die."
(Michael Bess, pp.251-252)
Such terrible choices are not unique to the Hiroshima decision, but are endemic
to large-scale modern war. Do we stay neutral and let aggression have its way? Do
we force thousands of conscripts to kill or be killed? Or try to end the war
through bombing or blockade?
To end the war with fewer lives lost there are two possibilities, both with risks
and downsides:
1. Use the bomb on a non-urban target plus Hiroshima, and hope that will induce
surrender as effectively as bombing two cities;
2. Abandon occupation and regime change as war aims, and hope that the resulting
peace will be lasting (and wouldn't backfire like the decision to leave Saddam
Hussein in power in 1991).
Aftermath
For Bess, the use of the atomic bomb on two Japanese cities was an atrocity, but
it also was the lesser evil and resulted in a net saving of human lives.
Before this action can be justified in utilitarian terms, we must also consider
the long-term consequences. Bernard Brodie noted:
"They are still the only nuclear weapons to have been used in war, and their use
has not made one iota more likely any future use. One would suspect that quite
the contrary is the case. Though the people of the two cities paid bitterly for
it, their sacrifice unquestionably contributed to the significance and
effectiveness of the balance of terror." (Bernard Brodie, War and Politics. New
York: Macmillan, 1973, p.56)
It is important that using nuclear weapons be stigmatized and regarded as taboo.
But rather than violating this understanding, what happened to Hiroshima and
Nagasaki helped to create and reinforce it.
From a peace perspective, President Truman should not be regarded as a villain.
In August 1945, he did what nearly any American leader would have done in his
place. However, during the Korean War, Truman took a firm stand against
escalating the war or using nuclear weapons against Communist China. He fired the
popular General Douglas MacArthur for insubordination over these issues.
Questions for Discussion 2
a. Do you think the atomic bombing of Hiroshima is justifiable by an...
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