1 Brian S.

Gallagher

A Senior Thesis in Just War Theory
Whither Jus Post Bellum?
Brian S. Gallagher





















I.
In practice, the inflation of ends is probably
inevitable unless it is barred by considerations of
justice itself. Michael Walzer, Just and Unjust Wars
1


Introducing J us Post Bellum

The above pronouncement of Walzers, made in the context of his discussion of just
settlements and the handling of the North Korean regime near the Korean Wars end, is notable
for its concise illustration of how the principles of just war theorythough separated into
different componentsnevertheless impact each other. There is first the ad bellum stock of

1
Michael Walzer, Just and Unjust Wars (New York, New York: Basic Books, 2006), p. 120.
In abstract, the argument of this thesis will proceed in
two sections. The first will discuss the grounding for the
conceptual structure of Just War Theory; specifically,
its traditional partitioning into two components, ad
bellum and in belloalong with the relatively recent
suggested addition of a third componentjus post
bellum. The second section, in concluding the thesis,
will argue for a revised structural conception of the
theory that has formal and substantive implications for
the normative content of a postwar, peace building
ethic.
2 Brian S. Gallagher

principles, which has been stated variously but at its core consists in the criteria of i) just cause,
ii) necessity, iii) proportionality, and iv) likelihood of success. In fulfilling these criteria, it is
held that a state may justly resort to war. The most obvious cases in which resort to such
violence is justified is in self- or in other-defense against aggression by another state, and the
justice of warring for these purposes shapes the political and military aims sought at the wars
conclusion. When North Korea invaded its Southern neighbor, then, a just cause to aid the latter
arose, and the United States (with UN authorization) took it upon itself to carry it out. The justice
the US would initially plan to exact, however, was hardly far-reaching, committed only to
pushing the N. Korean forces back to their side of the 38
th
parallel in order to restore the status
quo ante bellumoriginally there were no aims of trials and punishments, or of regime change
and rehabilitation; there was only the aim of returning things to how they were shortly before
war broke out. This limited military end had the implication that, politically, the US would aim
short of regime change and leave the aggressor state as it was.
This pursuit of limited justicelimited because of its contentedness with merely
halting the aggression of N. Korea rather than bringing them to account for it and preventing its
future expressioncorrespondingly limits the sort of attacks against N. Korea that are militarily
appropriate. The purpose of the in bello principle of proportionality is to constrain justified
military tactics to those which are necessary for, in this case, pushing the N. Korean army back
across the 38
th
parallel. As Walzer goes on to illustrate, however, this end was not held
constant; rather, in the course of the military campaign, it inflated. Warren Austin, the US
Ambassador to the UN, told the latter that the forces of N. Korea should not be permitted to
take refuge behind the 38
th
parallel because that would recreate the threat to peace
2
The just
cause hadnt changedit was still the protection of the South Koreansbut the reach of its

2
Quoted in Walzer, Just and Unjust Wars, p. 118.
3 Brian S. Gallagher

justice had, namely in Austins apparent contention that restoring the status quo ante bellum
would be strategically, if not also morally, wrongheaded. But in crossing that dividing line
between the warring Koreas, America, Walzer remarks, also took on a more radical purpose,
and goes on to say that, in so doing, it took on the goal of unifying Korea into a democracy by
force, which would require of them not limited attacks within the borders of North Korea, but
the conquest of the entire country.
3
With this expansion of ends, new military means are
made proportional, gauged in relation to a more thorough leveling of the N. Korean armed
forces. And with territorial and military conquest comes the stage and period of occupation, an
occasional phase of war that functions to maintain the security of a territory more than to take it
over.
This change in military emphasis is important because it marks a significant transition in
the occupying states political and military role in relation to the livelihood of the civilians in the
society of which they occupy. This role, as a peculiar activity conducted in wars aftermath, has
so far not received as rich normative theorization as the other aspects of warfighting
particularly the initiation of war and its conduct, or the component phases of ad bellum and in
bellobut it has of late generated lots of constructive and speculative literature.
4
In these fresh
discussions of justice after war, the 2003 US invasion and subsequent occupation of Iraq proves

3
Ibid., p. 118.
4
Brian Orend is jus post bellums most prolific advocate. His arguments are brought together in his The Morality of
War (Peterborough, ON: Broadview Press, 2006), e.g. at 1920 and chapters 6 and 7. For his most recent statement
of the theory, see Jus Post Bellum: The Perspective of a Just War Theorist, Leiden Journal of International Law
20, no. 3 (2007): 57191. Other supporters of jus post bellum include Gary Bass, Jus Post Bellum, Philosophy and
Public Affairs 32, no. 4 (2004): 384410; Richard P. DiMeglio, The Evolution of the Just War Tradition: Defining
Jus Post Bellum, Military Law Review 186 (2005): 11663; Robert E. Williams and Dan Caldwell, Jus Post
Bellum: Just War Theory and the Principle of Just Peace, International Studies Perspectives 7, no.4 (2006): 309
20; Patrick Hayden, Security beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory in Just
War Theory: A Reappraisal, ed. Mark Evans (Edinburgh: Edinburgh University Press, 2005), 15776; and Moral
Theory and the Idea of a Just War in Evans (ed.), Just War Theory, 121, at 13, 1920. Carsten Stahn, in Jus ad
Bellum, Jus in Bello Jus post Bellum? Rethinking the Conception of the Law of Armed Force, European
Journal of International Law 17, no. 5 (2006): 92143 theorizes jus post bellum from the perspective of
international law.
4 Brian S. Gallagher

itself as the case which most animates critical reflection on the sorts of rights, responsibilities,
and obligations that come into play in the tenuous relation and strenuous situation that is the
reconstitution and rehabilitation of a war-torn society. Jus post bellumas a component of the
theory of waging just warclaims itself rightly equipped to grasp the ethical quandaries that
follow, for instance, from the military conquest of the Iraqi state, the dismantling of its political
and legal constitution, and the international stewardship required to see the downtrodden
population stand up once again. Necessarily involved in these issues are concerns about the value
of sovereignty and territorial integrity, the meaning of just peace and just society, and the
procedures which bring these outcomes aboutlike war crimes trials, compulsory compensation,
demilitarization, and/or truth commissions and apologies. If war is meant to bring about a better
state of peace and prevailing justice than was present before
5
, then we must essentially be talking
about the exercise of healing social and political relations and capabilities once war has been
terminated. The question I would like to explore, then, is whether the ethical framework of just
war theory can adequately provide normative guidance in this broad moral activity.

The Purpose and Scope of Just War Theory

In his 1977 preface to Just and Unjust Wars, Walzer describes just war theory as a
comprehensive view of war as a human activity and a more or less systematic moral doctrine,
which sometimes, but not always, overlaps with established legal doctrine.
6
That was my
italicization, the reason for which was to highlight and emphasize a very important point about

5
Walzer, in Just and Unjust Wars p. 121, quotes from Liddell Harts Strategy p. 338: The object in war is a better
state of peace. Walzer goes on to describe it as a condition that is relatively safer and more secure for ordinary
men and women and for their domestic self-determinations.
6
Ibid., p. xxi.
5 Brian S. Gallagher

what I contend Just War Theory is for: to articulate a set of substantive precepts and procedural
standards that regulate the peculiarly massive and violent exercise of state-sanctioned
warfighting.

This purpose has implications for how the divisions of just war theory should be
interpreted; namely, I shall argue that jus ad bellum, jus in bello, (and a third component I will
soon introduce) should be understood as sets of principles and procedures that govern how
particular and distinct aspects of fighting a war should be practiced.
At odds with understanding war in this way is Brian Orend. His conceptual
characterization of the components of Just War Theory is temporal. Conceptually, he says,
war has three phases: beginning, middle, and end.
7
To the contrary, I hold that war has three
sub-practices: the initiation of war, its execution, and its termination.
Revising the theory of just war into this formulation has its advantages. In the first place,
abandoning the view of war as primarily a time period of violence between states allows for a
more coherent conception of Just War Theory, because doing so brings into tighter focus the
activities of warfare that require justification. Secondlyand consequentlythe issue of Just
War Theorys incompleteness, due to its alleged silence on the question of how wars should end,
is solved. Not, however, in the way that Orend thinks he has solved it with his addition of jus
post bellum, an addition thatfrom the beginning of his introduction of itconflates two
importantly distinct activities: that of ending, or terminating, a war justly; and that of justly
exercising and carrying out post-war rights, responsibilities, and obligations.

For helping me to see this point, I must thank Seth Lazar, whose working paper on this subject I read on the
internet but which was, as it itself stated, not for citation.
7
Brian Orend, The Morality of War, p. 160.
6 Brian S. Gallagher

All too often, still today, begins Orend, just war theorists stick with the first two
categoriesof jus ad bellum and jus in belloand pretend that is all they have to talk about.
International law, sadly, has joined just war theory regarding its relative silence on proper war
termination [my italics].
8
Proper war terminationisnt this clearly distinct from, say, the
need to impose short-term, direct military occupation over a shattered society
9
? In his account
of jus post bellum, Orend clumps these practices together and expects the same set of normative
principles to guide the practice of both. But the former concerns the justice of ending a war,
while the latter concerns what justice might require after the war has ended. Here and in other
places, Orend makes the mistake of believing that both these moral inquiries can be answered by
the same ethical criterianamely the precepts and procedures outlined in just war theory.
His motivation for this is clear. Orend thinks that if the theory cannot speak to both of
these ethical issues, then it will fail to be as robust as it should and succumb to a sharp,
potentially devastating objection from both realists and pacifists; namely, that just war theory
fails to consider war in a deep enough, systematic enough kind of way. Continuing, he says,
with its hitherto narrow [my italics] focusit does not ultimately care why war breaks out
and does not seek to improve things after wars end so as to make the international system more
peaceful over the long term [my italics].
10
Of course, I do not share these fears. As I have stated
above, it is not the task of just war theory to provide ethical guidance on the very broad goal of
making the international order more peaceful in the future, and this should be obvious by the
name of the theory. Rather, just war theory does have a narrow focus, the focus of morally
regulating warfare in the three practices I mentionedits initiation, execution, and termination.
With this schema, the theory is complete and coherent and there is no need to supply it further.

8
Ibid., p. 160.
9
Ibid., p. 162.
10
Ibid., p. 160.
7 Brian S. Gallagher

The task of theorizing what justice requires in the aftermath of war must be met by normative
criteria outside of just war theory (which I will discuss in the second section).
The idea of adding to just war theory the component of just war termination comes from
Darrell Moellendorf.
11
He terms it jus ex bello, whichthough philosophically unimportantis
a bit strange since the Latin translates vaguely to the right of war.
12
To be more specific it
should be termed jus terminare bellum, or the right to terminate war. This, as Ive been hinting
to, is the proper third component of normative criteria to add to complete the theory. (Before
sketching out these criteria, I do not want to go without mentioning an oddity of jus post bellum
that makes its inclusion to the theory more suspicious and less plausible. It means justice after
war and claims to render the just war theory conceptually complete; ironically, however, it
incriminates itself by implying that yet another category needs to be included in virtue of
symmetryif the theory requires an account of justice after war, must it not also require one of
justice before war, too? This, of course, is a sort of reductio ad absurdum; my point is that,
before war, the account of justice we use to evaluate our conduct in global affairs will just be our
broad international political morality, grounded in universal human rights. This could be
cosmopolitanism or something else; but whatever it ends up being, just as it would be our
normative guide before war, so, too, would it be our guide after war (more on this in the second
section). Thus, in assessing justice before and after war, calling upon the guidance of just war
theory does not seem sensible.)
*


Jus terminare bellum, my phrasing for the criteria of just war termination, is concerned
with the question of whether, and how, a war should be brought to an end. Moellendorf considers

11
Darrell Moellendorf, Jus ex Bello, The Journal of Political Philosophy 16, no. 2 (2008), pp. 123 136.
12
I am here relying on Google Translate.
*
I again credit Seth Lazar for bearing out this point.
8 Brian S. Gallagher

this to be a possible fourth set of criteriaalongside jus post bellumwhich he rightly describes
as the arrangements that should come to pass upon wars end.
13
Though he apparently regards
them as compatible, my thesis will not touch upon how he might think this is so; all I need is his
account of just war termination and how it is distinguished from and connects with just initiation
and execution, which I will now lay out.
To show that the criteria of jus ad bellum (the same criteria I listed at the outset) is
neither sufficient nor necessary for determining whether morally a war should be terminated
once it has begun,
14
he begins by making an argument for the first claim that, even if a war
begins completely just, it is still possible for its termination short of victory to be morally
required. Reflecting on the principle of likelihood of success bears this out. Once started, a war
whose success seemed probablegiven the relevant facts on an objective reading, or the
available evidence on a subjective onecould still turn out, in the course of the military
campaign, to be unlikely to succeed; and if its unlikely to succeed, then theres a strong reason
for the wars continuation to be unjust. To put it another way, because the judgment of whether
the initiation of war satisfies the ad bellum criteria is fallible, the question of whether the war is
likely to succeed must be constantly reassessed during the course of the war. This is what any
reasonable commitment to the justice of war requires.
15
Next, and more controversially,
Moellendorf defends the claim that it could very well be morally required to continue a war
which was initiated unjustly, not satisfying all of the ad bellum criteria. This, its important to
note, flies in the face of Orends proclamation that failure to meet jus ad bellum results in
automatic failure to meet jus in bello and just post bellum. But for Moellendorf, such positive
shifts in the justice of a war are demonstrably illustrated with the case of Iraq: If grave

13
Moellendorf, Jus ex Bello, p. 123.
14
Ibid., p. 124.
15
Ibid., pp. 125 126.
9 Brian S. Gallagher

humanitarian danger provides just cause for intervention, then surely it justifies continuing a war,
even if the war originally did not satisfy the principle of just cause.
16
He does not share Orends
conviction that once youre an aggressor in war, everything is lost to you, morally.
17

This point of divergence is extremely interesting because it leads to a fundamental
question about the nature of a just war: namely, under what conditions does the overall justice of
a war change? On Orends view, there is no redemption for a war that starts out unjustlyjus
ad bellum failure corrupts the whole resulting project. Referring to Iraq, he says, even if it
all turns out well, that still will not make the original decision just; it will simply mean that the
post-war situation was not as bad as it might have been.
18
Orend, admittedly, is working to
construct what he contends is an ideal conception of post-war justice; and thus, no matter
how much continuing a war might remedy injustice, if it starts unjust it stays unjust.
19
But this is
unhelpful and a weakness in Orends account, for there is rarely ever a war which is ideally just,
and in his attempt to articulate what that might be, he at the most blinds himself to an entire
component of just war theory, or at the least hastily passes over it. For he does, in a brief
passage, come close to hitting upon the central notion of jus terminare bellum when he
speculates on the bedrock limit to the justified continuance of a just war [my italics]
20

specifically, since all just causes are grounded on the principle of rights vindication (a just cause
is just because it vindicates violated rights) no war can justifiably continue once the violated
rights that grounded the just cause have been vindicated by the war. In other words, the principle
of rights vindication entails the transformation of a just war into an unjust one if it devolves into
something like a Crusade, where the goal of the war is no longer rights vindication but rather

16
Moellendorf, Jus ex Bello, p. 128.
17
Orend, The Morality of War, p. 162.
18
Ibid., p. 195.
19
Ibid., p. 163.
20
Ibid., p. 163.
10 Brian S. Gallagher

conquest or annihilation. But, as I said, this is just to pass over terminare bellum; to give it
proper treatment, as Moellendorf does, one must investigate the conditions under which even an
unjust war may be justifiably continuedand if it may, it can no longer be regarded as unjust.
But the justice of the original decision to go to war, for Orend, is very important; and
Moellendorf acknowledges that his relative lenience in this respect might constitute a reasonable
objection to his account. Still, he says, in the event that a war that was unjust to initiate becomes
just to continue, the case for continuing is based in part on the danger of compounding the initial
injustice by ending a war when good reason has developed to pursue it.
21
If, according to
Orend, the warstarted unjustlyis irredeemably unjust, should the good reason to continue
with the war be ignored and allowed pass away? What if a pressing cause for humanitarian
intervention cries out for attention, as it surely did in Iraq? He concedes that we could sayif
American-led reconstruction worksthat Iraq is better off but that the USs war, despite being
successful, cannot be fully just because of its unjust initiation. Justice for Orend, then, is a
matter of degree, as he bears out explicitly when he says, the less just your start of war, the
fewer your rights in the post-war phase.
22
But how, given his conceptual and normative
resources presented thus far, would he be able to say that the US should continue with the war
given that it started unjustly? There seems to be no moral principle which Orend can call upon to
support the bettering of the Iraqi state if such action would mean continuing an unjustly initiated
war. This is a consequence of his account lacking treatment of jus terminare bellum, a
consequence with which Moellendorf is not inflicted because he allows for the morality of a war
to shift in response to new and pressing causes arising from the vicissitudes of military conflict.

21
Moellendorf, Jus ex Bello, p. 130.
22
Orend, Morality of War, p. 195.
11 Brian S. Gallagher

Orend can be seen to unconsciously struggle with this theoretical weakness as he
contradicts himself concerning the USs moral responsibility in reconstructing Iraq. Discussing
the ends of a just war, he remarks that it is only when the victorious regime has fought a just
and lawful war, as defined by international law and just war theory, that we can speak
meaningfully of rights and duties, of both victor and vanquished, at the conclusion of armed
conflict.
23
If post-war rights and duties have meaning only when a war is began justly and
justly concluded, it would seem America has no means of justification in its restorative
occupational role in Iraq. Orend realizes this, and tries to wiggle away from this conclusion in
asserting that the US should not just up and leave because of the Pottery Barn Rule dictate: if
you break it, you buy it. In breaking Iraq, Orend contends, the US brought upon itself separate
responsibilities to help put Iraq back together [my italics].
24
He goes on to say that America,
therefore, has few rights, but many duties, regarding post-war Iraq [my italics]. I assume that
he takes these duties of America to have meaning in the sense above, but how can it be
reconciled with that stance he takes? Either the US has meaningful duties, or it does not. This is
perhaps the central problem with Orends account of jus post bellum: he wants to derive post-war
duties from the just adherence to just war principles and hold the US to that standard, yet he also
cant avoid granting the US post-war duties despite their failure to uphold that standard. Thus his
invocation of separate responsibilitiesseparate, presumably, because they are not derived from
adherence to just war principles. But from where, then, are they derived? If they are derived from
the Pottery Barn Rule, as Orend readily concedes, our task must then be to further characterize
the ethical nature of this principle, and to put forward an account of wherein an international
political ethicthis principle fits. Orend does not do this. Rather, he is content to assume what

23
Ibid., p. 162.
24
Orend, Morality of War, p. 196.
12 Brian S. Gallagher

he must prove: namely, that the goal of regime change, of realizing human rights, of building a
minimally just society,
25
can be read off, and extrapolated from, the jus ad bellum principles
which justify the resort to war in the first place. To his credit, this is very nearly right; for the
mistakethe fallacious stepis a subtle one, which I will now set forth to explain and make
bare.

II.
Like Moellendorf
26
(and like Walzer
27
before him), Orend
28
subscribes, though not
explicitly, to a cosmopolitan account of states rights. In its most basic form, it is the view that
states have rights only in virtue of those human rights possessed by their inhabitants. A states
rights, in other words, are dependent upon, and derived from, those of its populace. This
collective manifestation of rights in the state is contingent upon the state upholding the rights of
its membersforgoing this, the state loses claim to its rights. This is contrasted to a statist
conception of states rights, which is more dated and conservative in character because the state
is said to have rights independently from those of its inhabitants. As Moellendorf observes,
depending on which view of states rights is acceptedstatist or cosmopolitana just cause for,
say, humanitarian intervention, may or may not be permissible. Both he and Orend are advocates

25
Ibid., p. 35 37. Orend outlines three criteria for a minimally just society. The first criterion is the societys
general recognitionby its own people and the international communityas being minimally just. So societies that
fulfill this criterion typically are not pervasively criticized by international officials as being unscrupulous or subject
to heavy skepticism about its capacity to organize a decent communal life for its members. The second criterion is
the societys avoidance of violating the rights of other states, the most easily identifiable case being the commission
of aggression. The third criterion is the societys making every reasonable effort to realize the human rights of its
populace.
26
Darrel Moellendorf, Cosmopolitan Justice (Boulder, Colorado: Westview Press, 2002), p. 159.
27
Walzer, Just and Unjust Wars, pp. 53 54.
28
Orend, Morality of War, pp. 33 35.
13 Brian S. Gallagher

of cosmopolitanism, and Orendelaborating and extending this ideaformulates conditions
that states must meet in a cosmopolitan society if they are to retain their rights: this is the concept
of a minimally just society mentioned above. If a state wishes to retain its rights, then it must
be minimally just, or else it has no moral claim against those who wish to intervene into their
internal affairs, with a moral mandate to protect and secure human rights.
These rights of the state are commonly conceived as, in the least, the right to political
sovereignty, territorial integrity, and resistance against aggression.
29
Therefore, given all that was
said in the above paragraph, when a humanitarian intervention against a state is justified, it is
justified because the state no longer has a claim to any of the three rights just listed. To vividly
bring out Orends mistake in his account of the grounding of post-war rights and duties, Ill lay
out the premises just discussed with reference to the case of Iraq.

I admit, Orend says, that Saddams regime had no right not to be attacked. It seems as
though his regime violated the condition of making every reasonable effort at domestic human
rights satisfaction, and therefore lost the rights of statehood, which includes the right not to be
overthrown.
30
Though he admits this, Orend maintains that the plight of the Iraqi people under
Saddam does not seem comparable to the humanitarian emergencies of Rwanda in the 1990s and
Cambodia in the 1970s; those seemed to require quick and decisive stopping; while for Iraq in
2003, it was not obvious that the humanitarian cause was as pressing, and therefore the question
of whether it would be a wise judgment call to intervene is just thata judgment call. He does
say that humanitarian intervention was the strongest case for the Iraq War, but fighting for that
cause could never justify the war because of the USs originally professed unsubstantiated reason

29
Orend, Morality of War, p. 37.
30
Ibid., p. 97.
14 Brian S. Gallagher

for going: to pre-emptively strike in defense of an anticipated attack by Saddam Hussein.
31
For
Orend, having the right intentionhaving the right reason to initiate the warfrom the start, is
essential for the moral integrity of the war; this includes announcing, in advance, the main reason
for the war, as well as publicly committing to adhere to the mandates of just war theory, meaning
being tempered by the in bello constraints and requirements and of those having to do with
eventually terminating the war justly; being unprepared to meet the responsibilities of waging
war at the time of its initiation counts as an injustice. Winners, like America over Iraq in 2003,
Orend says, should never find themselves in a position where they have won the war but they
do not know what to do next, and so start making up post-war policy on the fly.
32
This is the
result of their scatter-shot
33
approachlisting a host of plausible-sounding reasons for war but
never settling on a main or defining causean approach that conveys the impression of being an
incompetent statesmen and is therefore irresponsible.
34

I will not be taking a stance on whether the war in Iraq was just or not (though I am
inclined to think that, given Saddams unscrupulous and depraved regime, such hostilities were
inevitable). Let us entertain, then, the logic of the following premises. In the case of the Iraq war,
it is by definition the case that Saddam waged an unjust war against the US: his regime was
unworthy of the right not to be overthrown and had no moral right to wage war in defense
because of its failure to be minimally just. Thus, either the US war in Iraq was a case of both

31
Orend, Morality of War, pp. 78 83.
32
Ibid., p. 164.
33
Ibid., p. 49. The approach is scatter-shot because, as the name implies, no particular cause for war is targeted as
the main, animating reason. Orend observes that the Iraq war was, at one time or another, justified by each of these
reasons: 1) Saddam had WMDs, some of which could be deployed within forty-five minutes; 2) Saddam intended to
give some of its WMDs to al-Qaeda, for use against America; 3) Saddam was actually involved with al-Qaeda in the
9/11 attacks; 4) Saddam needed to be overthrown as an act of humanitarian intervention on behalf of the Iraqi
people; 5) Saddam posed a threat to regional security, especially regarding Israel and the Saudi oil-fields; 6) Saddam
kicked out the UN weapons inspectors in 1998 violating the Persian Gulf War treaty, which specified possible
violent consequences for doing so; and 7) Saddam needed to be overthrown to create forcibly the first Arab
democracy, which would serve as a Trojan Horse for better values throughout the Islamic world.
34
Ibid., p. 50.
15 Brian S. Gallagher

sides warring unjustly, or not. If neither side was just, thenaccording to Orenda just peace
settlement would be, as a matter of principle, impossible; or, as he would say, there could only
be injustice after such a war because the injustice of [the USs] cause infects the conclusion of
the war
35
However, as I mentioned earlier in the paper, Orend concedes that moral
considerations independent of justicethose aforementioned separate responsibilitiessupply
a standard of evaluation for judging the social and political relations within a state and those
extending internationally, as better or worse. This fact also implies a standard of accountability
for bringing these outcomes aboutwhich Orend alludes to in submitting that the US is
accountable for rehabilitating Iraq; yet he is silent on how this could be, given that real post-war
duties are supposed to arise from the waging of a just war from the start. I submit, therefore, that
the real question about justice after war (lets say with the case in Iraq) is this: By what
permissible means is the US to achieveregardless of the wars justicethe bettering of the
Iraqi state? In other words, justice after war is just thatthe justice that comes after the war has
concluded, after it has been deemed just or unjust: the question of how to realize justice after war
must be a live and real question regardless of whether the recently concluded war was unjust. For
this precise reason, the question of how to realize justice in the aftermath of war is not the
prerogative of just war theory to answer: it only answers the questions of whether a war was
justly initiated, justly executed, and justly terminated; the justice of war lies in the ethical
practice and regulation of the three activities that constitute it. The practice of restoring and
rehabilitating a war-torn society does not form part of the practice of warfare, and is therefore
not guided by the normative regulatory principles of warfare, which are jus ad bellum, jus in
bello, and jus terminare bellum.

35
Orend, Morality of War, p. 162.
16 Brian S. Gallagher

All this entails a further interesting implication. It is possible for two unjustly warring
states to agree to a cease-fire and subsequently agree to a fully just peace settlement. For Orend,
this is not possible, because in order for there to be a just peace settlement at the termination of
war, there had to have been one state with justice on its side from the start. But this seems
implausible, I think, in view of my proposed revision: if we characterize a just peace settlement
by the fairness of its terms in view of the weight of justice and injustice on each side, then we
can say that, even when a war is unjust on both sides, still, they can come to agree to a fair set of
terms in a cease-fire, at least in principle. I say this because, empirically, such a scenario is not
likely since the unjust wars would probably be denounced as illegal by the international
community, whose members would then therefore have the right to intervene to stop itjustly
and if victorious, then we are brought back to a case where there is justice on one side of the war.
In this sort of event, the terms of the peace settlement would be made or overseen not by the
unjustly warring states, but by an international body or a unilateral representative of such. We
can, however, imagine a case where such just intervention by the international community is not
possible. If a war, waged unjustly on both sides, is terminated, the practice of terminating the
warwithout the oversight and mandate of a just third-partycould still conceivably be just;
what makes it just is having the counting up of injustices on each side fairly factor into the terms
of the settlement. Here I agree with Orend that justice comes in degrees, so that one side could be
more unjust than the other, which would mean more concessions would be made by the side with
a higher degree of injustice. I leave it open to argument whether, say, violations of jus ad bellum
are more weighty than those of jus in bello; how to add these injustices up and factor them into
the peace settlement appropriately is beyond the scope of this thesis. I submit this as an aspect
that requires more conceptual fleshing-out.
17 Brian S. Gallagher

Now we are ready to turn, finally, to the set of principles that make up jus terminare
bellum
36
. Just as there is a requirement of just cause to initiate a war, so must there be one to
terminate it. The most obvious case where a just cause to terminate war is present is when the
war has been won, which essentially means that the rights whose violation justified the wars
initiation have been victoriously vindicated. In other words, once the just cause for the war has
been realized, the justice of war termination requires that the war end. And as mentioned before,
wars do, in the vindication of violated rights, aim for a more secure possession of them. This is
to say that, in justly terminating a war, the war must end in such a way as to create the conditions
for a peace that is more secure than that which preceded the onset of war. A war may also be
justifiably terminated if it is likely to fail, or if its continuance could only promise an outcome
that is disproportionately good in comparison to the bad effects of waging it. And in terminating
war, its assumed that there is an authority that has the power to do so; requiring that the
authority be legitimate has some plausibility, for instance, in cases where it might be positively
unjust to terminate the war; but, most of the time, no one will listen to someone who wishes to
terminate the war that has no authority to do so in the first place. A war also may be justly
terminated if an opportunity for diplomatic resolution arises
37
. There is an important
qualification to this criterion that Moellendorf refers to by way of quoting Walzer: It isnt
always true that such cease-fires serve the purpose of humanity. Unless they create a better
better state of peace, they may simply fix the conditions under which the fighting will be
resumed, at a later time and with a new intensity. Not all diplomatic resolutions, in other words,

36
Remember from earlier in the paper that this is essentially Moellendorfs account of jus ex bello. He, however,
frames his principles in terms of justifying the continuance of war. I frame the same principles negatively in terms
of what would justify, not the wars continuance, but rather its termination. So I take it that, in general, if one is
justified in terminating war, then one is thereby unjustified in continuing it, and vice versa. However, exceptions to
this are possible.


18 Brian S. Gallagher

are adequate to justify war termination. So we must ask, what are the considerations that favor
seeking a negotiated settlement over a non-negotiated one and vice versa? If an unjustly warring
state is sufficiently morally bankrupt and coarse, like Saddam Hussein, it may only be
demeaning and degrading to negotiate with him; it also may simply be unwise, for hes likely not
to abide by the terms of the settlement in any case. So, taken together, the principles of jus
terminare bellum are so far: i) just cause, 2) likelihood of failure, 3) disproportionality, and 4)
opportunity for diplomacy. But another is important to mention, and it is political and military
trust. Justly terminating war depends on both of these levels, as political leaders must be counted
on to abide by the terms of settlement (if there are any) and soldiers must not take advantage of
the enemy letting their guard down when hostilities have ceased. Trust strengthens the entire
system of normative regulation of warfare, and helps to further peace not only immediately after
war but for future wars as well; so on consequentialist grounds, trust is an important criterion for
import. Just reflect on how difficult it would be to terminate war if no one actually believed that
the fighting would stop after a settlement had been made. Its not only powerful in terms of
consequences, however; to lie and to breach a settlement in order to swindle ones enemy is
wrong regardless of the consequences.
The application of these principles can become more complicated, however, in a situation
where the just termination of war itself causes an injustice to arise as a consequence of ending it.
Imagine, for instance, that the US would be justified in terminating its war in Iraq, say, because it
could no longer afford fighting Saddam, who nevertheless was significantly weakened by the US
bombardment. But now with the US planning to leave, and with Saddam weakened, his rivals
and enemies within and around Iraq see an opportunity to try and seize power and thereby a civil,
sectarian, ethnic, and/or regional war ensues. Now, because (well say) in this case the USs war
19 Brian S. Gallagher

was justified by a cause for humanitarian intervention, this means that, in terminating their war
and leaving, they must do their best to mitigate the injustice in failing to realize the just cause of
humanitarian intervention. As Moellendorf says, Because the war satisfies the principle of just
cause, the process of withdrawing troops requires balancing the moral requirement of not
extending an unjust war against the requirement to mitigate the injustice that cannot be
remedied.
38
Hence this means, in more concrete terms, that the military aims must become more
modest in comparison to the formerly stronger aims which were set in order to realize the just
cause in fulllike, for example, seeking merely the protection of the Kurd minority rather than,
more strongly, seeking the ousting of the regime and the sources of hostility that threaten them.

In summation, then, I shall review what has been argued for thus far. There is first the
issue of how to understand the tripartite structure of just war theory as well the purpose of the
theory itself. The waging of war, I have said, consists in three distinct activities, each with their
own set of regulatory principles and precepts. Jus ad bellum for the initiation of war, jus in bello
for the execution of war, and jus terminare bellum for the termination of warthis, Ive argued,
is a conceptually complete account of what is involved in waging a just war. I then went on to
show that jus post bellum, most ardently and sophisticatedly explicated by Orend, is
consequently left without a place in just war theory. This is because it provides a view of what
rights and duties states have to each other after war has been concluded, rights and duties the
discharging of which constitutes an activity quite distinct from waging war, and therefore
requiring a likewise distinct set of ethical criteria separate from those that regulate the practice of
warfare. Ive attempted to show that Orend comes up against this very fact and, as a result of his
account, contradicts himself, or at least stumbles into inconsistency. This was illustrated I think

38
Moellendorf, Jus ex Bello, p. 135.
20 Brian S. Gallagher

rather plainly in how Orend admitted that, despite the US not having justice on its side, it still
retained duties to aid in the rehabilitation of Iraqa position that is clearly ruled out by his own
contention that there can only be duties of justice postwar in the event of a war justly waged; I
therefore disagree with his assertion that each phase of warthe initiation, execution, and
terminationare intimately bound together in such a way that were a war to be initiated unjustly,
the practices of executing and terminating would necessarily be unjust as well. To the contrary
Ive attempted to show that a war can be terminated justly even in a case in which it was unjustly
initiated. If this is all right, then I have dismantled the tripartite version of just war theory
proposed by Orend and thus have reopened the question of how to understand the moral basis for
the rights and responsibilities we think states sometimes possess in the aftermath of war.













21 Brian S. Gallagher

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