What does jure belli mean

But Grotius did not so much codify just war theory as weaken it by recognizing the role of conflict in settling disputes between nations. De Jure Belli ac Pacis rejects religious bans on war. The end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those principles of nature. Grotius went to greater lengths than any before him to lay out the various just causes for war.

Contrary to traditional just war doctrine, Grotius permitted what we know today as preemptive and preventive war. Any genuine theory of just war must identify which belligerent has acted legally in starting war, and which has the obligation to surrender.

But for Grotius, the question does not generally yield an answer. In the absence of any higher sovereign that can evaluate the claims and control the actions of nations, states can lawfully do as they please. The law of nations can help contending nations settle their disputes through negotiation, diplomatic conferences, arbitration, or even by lot or single combat. But war itself might erupt when peaceful alternatives were exhausted.

For Grotius, just war theory is like pacifism: it is a doctrine that, whatever its attractions might be, is impracticable in conducting relations between sovereign states in the real world. Think again about restitution and reparations. These principles are often seen as a key to post-war justice and important dimensions in achieving reconciliation. But if the losing side of a war is already devastated and cannot easily repay the winning side what it would normally be thought to owe, then there is reason to think that demanding that full reparations be made is in some sense disproportionate.

The question is in what sense is it disproportionate to demand reparations payments from those who are already devastated by the effects of a long war. And one answer is that demanding full reparations might pose a greater burden on the losing side than it will benefit the winning side in terms of long-term peace.

Indeed, for this and related reasons Grotius proposed that meionexia , demanding less, could be seen as a principle of post bellum justice. Jus post bellum proportionality is the condition, or desiderata, which is aimed at aiding in the avoidance of overly severe terms of a peace settlement. In the early modern period, Grotius is the great defender of the principle of meionexia as the conceptual underpinning of jus post bellum. I return to this issue in Section 4. And Grotius made this fairly explicit when he then addressed restitution and reparations.

Even if one side fights a just war, it may not be entitled to the spoils of war, argued Grotius. Restitution as a matter of internal justice or obligation is something that may be owed even on the part of the just and victorious nation.

And the reason for this is that justice can sometimes be a matter of not demanding what one has otherwise a external right to demand. Indeed, Grotius is one of the first to recognize that things that are permissible are of two kinds—a narrow permissibility in terms of what strict external right demands, and a wider notion that takes into account humanitarian considerations of the sort that jus post bellum involves.

And in this respect justice should not be seen as a strict notion that does not take account of the suffering that may result from demands that were permissible in one sense but not permissible in terms of values like compassion. Indeed, the idea that justice should encompass compassion is a central idea in what I regard to be the very best understanding of justice in a jus post bellum context.

Justice is normally understood as retributive, compensatory, or distributive. In retributive justice, the person who has done wrong is treated according to what is his or her due, in most cases this means some kind of penal sanction.

In compensatory justice, one must pay back what one has wrongfully taken or damaged, again as what is due. In distributive justice, where things can be divided, equality is the rule, or there must be salient reasons for unequal division. But there is a fourth form of justice that is appropriate for situations where the good cannot be secured by adhering strictly to what is due, perhaps because securing what is due will set the stage for greater wrong p.

In my view, the form of justice appropriate for jus post bellum is meionexia , which incorporates aspects of the other three forms of justice, but is distinctly different from each of them. Aristotle identifies the excess as pleionexia , but does not name the deficiency. I believe that the deficiency should have been named meionexia , as philosophers in the Ancient period who followed Aristotle recognized.

But some of these philosophers, such as the Cynics, thought that meionexia was actually the best characterization of justice itself. I maintain that demanding too little is the wrong way to think of meionexia. So understood, meionexia can be seen as a form of justice. Meionexia calls for people to accept, or demand, less than what they are due if this is necessary for some greater good as well as for achieving justice understood in its wider sense.

Meionexia does not simply call for compromise or settling for less. Compromise is problematic when it involves one or both parties having to sacrifice what is morally valuable to their integrity. On the assumption that all people strive for a just and lasting peace, there is no loss of integrity involved even when the parties decide to give up what is morally important to them.

In the sense that all parties will equally get what they strongly desire, a just and lasting peace, there is a sense in which meionexia as a jus post bellum principle is closely related to justice understood in distributive terms. In post-apartheid South Africa, criminal trials and accompanying punishments were not pursued even though the victims had the right to demand them as a matter of strict retributive justice.

But in not following strict justice, the Truth and Reconciliation Commission did not let the perpetrators of apartheid off the hook since there were still some penalties, as was also true in Rwanda with the gacaca proceedings. Here justice as meionexia was consistent with the deontological underpinnings of retributive justice. In addition, when the Allies decided to help rebuild the Axis countries after the Second World War, this was not a compensatory payment but rather an investment in reestablishing peaceful partners and fellow democratic states.

By not demanding what the victors had a right to demand, victors show a respect for those individuals who are part of the vanquished side but who are often not complicit in the aggression of their political and military leaders.

Showing respect for these vanquished people, but not necessarily for their leaders, can be crucial for a return to the rule of law. After war ends the vanquished government often cannot provide such compensation. In this sense reparations and restitution are accomplished as is sometimes true in auto accident cases in the US and elsewhere, as a kind of no fault plan. Those who are most able to pay are asked to pay compensation, even though they have no strict duty to do so.

Again, we can see this in operation historically in the way the US and its allies paid for the rebuilding of Germany and Japan after the Second World War. Another way to see that meionexia is not necessarily at odds with traditional understandings of justice is to see that justice has often been associated with equity.

Equity epikeia , as a part of justice as fairness, has been one of the hallmarks of justice since the time of the Greeks but even more so in the contemporary period especially in the writings of John Rawls and other liberal theorists.

Even if one is due something it may be that demanding it is not fair in some cases, and hence that it would be unjust to demand all that one is due. This may be unfair in the sense that it may fail to see that the person who is properly your debtor simply has gotten into this position not by his or her fault. Or the person who is in your debt may simply not have the means to pay you on demand without undermining his ability to support his family.

Equity is not the only dimension of fairness, since fairness also involves a concern for equality of treatment. A situation where people start off with unequal shares of wealth will be exacerbated if a strict notion of justice where each can demand all and only what one is due is applied—thereby allowing the rich to get even richer at the expense of the poor getting poorer. Equal treatment is often one of the prerequisites for equal respect.

Yet providing strictly equal treatment often exacerbates actual inequality. When there is major inequality in a society of wealth or status the way people think of their worth is also adversely affected.

Indeed, such a situation could breed a society where people did not even have respect for one another as fellow human persons. And such disparity in respect normally intensifies conflict rather than providing a basis for the establishment of a lasting peace.

As I mentioned earlier, another component of justice is moderation, at least on the Aristotelian account. And an associated character-based virtue connected to moderation is humility, at least in the late-Medieval reworking of Aristotle.

While not a proper Greek virtue, the virtue of humility is closely linked with the kind of justice that is exemplified p. And humility also seems to be the appropriate attitude to have, given the epistemic problems associated with knowing what a person is due. It is the arrogant person who thinks he or she knows exactly what is his or her due, and demands it all. Epistemic-based humility is a sign that one has the attitudes of a just person.

One might wonder whether meionexia might be better understood if it is not thought to be a form of justice. Perhaps we should associate meionexia with charity rather than justice.

In this view, the concept of justice is best left to the strict considerations of public right. Indeed, when meionexia is said to be the cornerstone of jus post bellum , it then becomes clear that we are not really talking of legal justice but of those considerations of private conscience that are best distinguished from public justice. To add a large component of what is normally seen as charity into a conception of justice seems merely to muddy the waters in understanding the nature of justice.

My response to this important criticism is to suggest that humility, if not charity, has played a role in the way justice is understood since the Middle Ages. In part, this is what seeing justice as a form of Aristotelian moderation is all about.

For justice to be characterized as moderation, the demands of justice must not be seen as going beyond what is reasonable to demand of people, given the disparate situations people find themselves in. Sometimes it seems as though the demands of justice are those that are the loudest—and in this way justice secures its place as the value of courtroom proceedings where prosecutor and defense counsel make conflicting and strident demands.

But, in my view, justice is not best seen as adversarial in all settings. Yes, the victims need to be able to demand what is rightly theirs, but their demands must sometimes be seen as moderated by the circumstances. So we have seen in this section that one who epitomizes moderation has a reason not to demand all that one is due at the moment since this may turn out not to be the best given long-term considerations. This brings us back to the ideas of jus post bellum.

In order to secure the long-term goal of a just and lasting peace, it may be necessary for the current just and victorious party not to demand all that is his or her due in the short-term. This is one of the central roles for meionexia in jus post bellum deliberations, as Grotius recognized. If meionexia is not a matter of strict justice, but of humility and moderation, are people bound to follow this form of justice.

Grotius distinguished between the law of nations and the law of nature, 30 as did other seventeenth-century philosophers such as Hobbes. For Hobbes, natural law binds in foro interno , whereas civil law binds in foro externo. If one violates the laws of nature one commits a sin, not a crime.

Only when the laws of nature have been given force and sanction by a sovereign does a violation result in a crime and a call for punishment.

Similarly, Grotius separates the bindingness of morality, of what he calls the laws of nature, from the bindingness of the law of nations. Indeed, not all of justice is binding in the same way, since not all of what is just is written into anything like black letter law. Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

Here we have a regime of international law that is not strictly speaking lex lata but is also more than mere lex ferenda. It is my view that Grotius saw the laws of nature, including the principle of meionexia , as having this character—they are binding but not in quite the same way as black letter law because they are not promulgated and proven in the same way.

For Grotius there were binding rules of peace just as there were binding rules of war. Today the laws of war are fairly well settled, which is not true of the laws of peace. In this sense jus post bellum is perhaps best seen as lex ferenda. My point is only that the question of whether jus post bellum is merely lex ferenda and not lex lata is a more complex question than one might first imagine, especially from a Grotian perspective.

Yet, etymology aside, it is true that there is not as much treaty law or clear-cut custom, that pertains to the jus post bellum , as compared to the realms of jus ad bellum and jus in bello. Transitional justice concerns the moral and legal considerations that pertain to situations where a new, normally more democratic, regime is being formed after mass atrocity or oppressive conditions have been stopped. Jus post bellum concerns the moral and legal considerations that pertain to situations where a war or armed conflict has come to an end.

In both cases justice considerations pertain to situations where a just peace is being established or reestablished. Transitional justice and jus post bellum share in common many concepts. In both transitional justice and jus post bellum , reconciliation is crucial but so also are retribution and reparations. In the literatures that are emerging on transitional justice and jus post bellum , the victims of war and atrocity are front and center.