Invasion Phase of the War in Afghanistan: A Jus post Bellum Analysis

Introduction

The War in Afghanistan occurred in two stages: the first was the invasion in 2001, the second was the insurgency phase which lasted from the end of the invasion until American withdrawal in 2021. The difference (besides switching from symmetric to asymmetric warfare) is usually accounted for by a change of enemy: during the invasion-phase the enemy was the Islamic Emirate’s military, and afterwards it was the Taliban.

This paper begins with a review of modern (“maximalist”) jus post bellum theory as exposed by Brian Orend. The theory is then critically examined both independent of the rest of Just War Theory as well as how jus post bellum relates to jus ad bellum and jus in bello. Finally, it is applied to the end of the invasion phase of the War in Afghanistan.

Jus post Bellum, Old and New

Frowe distinguishes¹ between a minimalist and maximalist approach to jus post bellum.

The minimalist approach, advocated by the diplomat and legal theorist Hugo Grotius, is designed to rein-in the zeal of the victor. It considers jus post bellum criteria as permissions: what the victors are allowed to do in victory. The minimalist theory allows the victors to take actions that “protect themselves, recover that which was illicitly taken, [and] punish the perpetrators.” Temporary occupation is acceptable, colonization is not. Further, it is unacceptable to force the inhabitants of the defeated nation into slavery.

The maximalist approach imposes obligations on the victors instead of granting them permissions. The concern is not that the victor’s actions must be limited, but rather that the victor will do too little, leaving the defeated nation a failed and dysfunctional state.

Orend’s Jus post Bellum Criteria

Orend claims² that a just peace must satisfy all of the following criteria:

Rights vindication – “The settlement should secure those basic rights whose violation triggered the justified war. The relevant rights include human rights to life and liberty and community entitlements to territory and sovereignty.”³

Proportionality and publicity – Conditions stipulated by the peace treaty should not be vengeful and should be publicly available.

Discrimination – Isolate civilians from punitive measures.

Punishment of leaders – Leaders of the defeated nation must be punished, as a deterrence to future aggression, to spur atonement, and “failing to punish the aggressor degrades and disrespects the worth, status, and suffering of the victim.”⁴

Punishment for war crimes – Combatants on all sides must be held accountable for any war crimes.

Compensation – Subject to proportionality and discrimination.

Rehabilitation – Aggressor state may require demilitarization and political rehabilitation (regime change).

Problems with Jus post Bellum Criteria by Itself

The main problem with jus post bellum criteria is that it commits the victor to nation-building. Orend requires that we restore rights, including “community entitlements to territory and sovereignty,” not just individual rights. He goes on to require that the victorious nation must⁵:

• “Provide effective military and police security for the whole country.”
• “Revamp educational curricula to purge past propaganda and cement new values.”
• “Ensure that the benefits of the new order will be (i) concrete, and (ii) widely – not narrowly – distributed.”

We must provide military defense, police, an educational system, and a distributive economic system for the defeated nation. We’re responsible for their long-term care, well-being, and protection. We’re not just stopping a war; we’re exporting a progressive’s conception of democracy. Orend explicitly acknowledges this, summoning the spirit of Immanuel Kant and stating that for the defeated nation, “the utmost which can be done to it in vindication of international law and order is the establishment of a more peaceable and progressive social order within it.”⁶

Frowe notes that the maximalist jus post bellum as espoused by Orend is grounded in liberal theory and international law⁷; she is being literal here, and the foreign policy required by Orend (and Kant) is best described as “liberal imperialism”⁸ and commits us to being not only the world’s policemen but also the world’s social workers.

Relationship to the Rest of Just War Theory

Other than the Doctrine of Discrimination, discussed in next section, the maximalist approach to jus post bellum interacts with at least two other criteria from Just War Theory: the “reasonable chance of success” criterion from jus ad bellum and the proportionality requirement from jus in bello.

If a likelihood of success is required before entering into war, then the nation building described above must be part of the calculation. Rebuilding a whole nation in the way described by Orend is a truly massive undertaking that is unlikely to succeed, as illustrated by the insurgency stage of the War in Afghanistan. Thus, the probability of success is lowered.

The type and amount of collateral damage inflicted must also be considered, as the victor nation is responsible for rebuilding the infrastructure damaged during the war. Under this, the cost of reconstruction must play a role in determining whether to attack a specific target, and not just military benefit. The evaluation of proportional response is thus distorted by economic concerns.

The Doctrine of Discrimination

The Doctrine of Discrimination, usually considered part of jus in bello, arises again in Orend’s jus post bellum criteria: the civilians⁹ of the defeated nation must be isolated from punitive economic measures enforced by the victor. The doctrine thus plays the same role in both jus post bellum and jus in bello theories: avoid harming the civilians. The Doctrine of Discrimination is problematic in both theories because it makes a crucial assumption about the civilians of the enemy nation: that they are “innocent.”

How do civilians get along in a totalitarian regime? It is popularly assumed that they have no choice in the matter, that they (as a whole) were forced to live in a dictatorship. Is this really the truth? There are numerous examples of dictators who won office through popular election.

Further, members of the populace frequently act as informants, collaborators, or private enforcers of the government edicts. A good example of this came after the fall of the Berlin Wall: once Germany was reunited, lists of collaborators with the East German Stasi were released, and it has been calculated that 18% of the population of the city of Rostock were informers.¹⁰

A more recent and close-to-home example of private individuals and companies taking on the role of law enforcement happened during the lockdowns, vaccine mandates, and mask mandates in 2020 – 2023: examples of government enforcement of these mandates (for example, discharging military members for refusing vaccination) did occur, but it was far more common to have private people and institutions act as enforcers¹¹.

No, private individuals and non-combatants are far from innocent, and this undercuts the Doctrine of Proportionality. This will become extremely relevant in the next section.

Conclusion - Application of Jus post Bellum to the War in Afghanistan

During both phases of the war, the United States clearly distinguished the military vs. civilian parts of Afghani culture and endeavored to avoid or at least limit the use of force against civilians as much as possible. In that, we followed the Doctrine of Discrimination, taking no punitive actions against non-combatants and requiring almost no cultural changes. In fact, we went out of our way to leave as little of an “American culture footprint”¹² as possible.

Examples of this were the so-called “Cultural Support Teams”¹³ and the “Female Engagement Teams.”¹⁴ The goals of both programs were to build relationships with Afghani women by sending female soldiers or Marines to meet with them and earn their trust. They were initially controversial because they involved placing females into combat situations. The real controversy should have been the extent that the teams kowtowed to the misogynistic aspects of Afghani culture: female soldiers and Marines were required to always wear head coverings and always have male escorts, even when security was not a major concern. Both CSTs and FETs were considered failures.

More egregious examples of this “cultural support” were the continuation of child marriages and bacha bazi, the latter being the purchase and use of adolescent and pre-adolescent boys for sex by mature male adults. Bacha bazi was outlawed by occupation forces¹⁵ as well as by the Taliban (both before and after American withdraw). However, U.S. forces were explicitly instructed to ignore instances of such sexual abuse. According to the father of one Marine in Afghanistan, “my son said that his officers told him to look the other way because it’s their culture.”¹⁶ A Special Forces soldier was relieved of his command after acting against an Afghan perpetrator.¹⁷ The practice continues unabated.

Bacha Bazi in Afghanstan. Photo from the Indian Times

While all this was happening, foreign policy experts were arguing for “the separation of mosque and state.”¹⁸ It was clear that the Americans thought it was sufficient to replace the Islamic Emirate with the Islamic Republic, substituting one system of government with another.

Was the period following the end of the combat phase of the War in Afghanistan a just peace? In one sense it was, because we undertook the process of rebuilding that nation. In another sense it was not, because we never defeated the real enemy, the “innocent” Afghan civilians.

Footnotes

1. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
2. Brian Orend, “Jus Post Bellum: The Perspective of a Just-War Theorist.”
3. Ibid.
4. Ibid.
5. All quotes from ibid.
6. Ibid.
7. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
8. Dan Cox, “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.”
9. Orend specifies “civilians” and avoids discussion of non-combatants and other edge-cases.
10. Peter Wensierski, "East Germany thrived on snitching lovers, fickle friends and envious schoolkids."
11. Madeline Chambers, “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.”
12. Ben Connable. “Human Terrain System is Dead, Long Live … What?”
13. Megan Katt, “Blurred Lines: Cultural Support Teams in Afghanistan.”
14. Anna Coll, “Evaluating Female Engagement Team Effectiveness in Afghanistan.”
15. Chris Mondloch, “Bacha Bazi: An Afghan Tragedy.”
16. Joseph Goldstein, “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.”
17. Ibid.
18. Alexander Bernard, “The Advantage to Islam of Mosque-State Separation: What the American Founders can teach.”

Bibliography

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Chambers, M. “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.” Reuters, 2 April 2020. Retrieved 4 May 2024 from https://www.reuters.com/article/idUSKBN21K2RD/

Coll, A. “Evaluating Female Engagement Team Effectiveness in Afghanistan.” Wellesley College Honors Thesis Collection, April 2012. Retrieved 5 May 2024 from https://core.ac.uk/download/pdf/217003814.pdf

Connable, B. “Human Terrain System is Dead, Long Live … What?” Military Review, January-February 2018. Retrieved 5 May 2024 from https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/January-February-2018/Human-Terrain-System-is-Dead-Long-Live-What

Cox, D. “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.” Orbis 57 no. 4, Autumn 2013. https://doi.org/10.1016/j.orbis.2013.08.010

Frowe, H. The Ethics of War and Peace. Routledge, 2022.

Goldstein, J. “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.” New York Times, 20 September 2015. Retrieved 5 May 2024 from https://www.nytimes.com/2015/09/21/world/asia/us-soldiers-told-to-ignore-afghan-allies-abuse-of-boys.html

Katt, M. “Blurred Lines: Cultural Support Teams in Afghanistan.” Joint Force Quarterly 75, no. 4. October 2014. Retrieved 5 May 2024 from https://ndupress.ndu.edu/JFQ/Joint-Force-Quarterly-75/Article/577569/blurred-lines-cultural-support-teams-in-afghanistan/

Mondloch, C. “Bacha Bazi: An Afghan Tragedy.” Foreign Policy, 28 October 2013. Last retrieved on 4 May 2024 from https://foreignpolicy.com/2013/10/28/bacha-bazi-an-afghan-tragedy/

Orend, Brian. “Jus Post Bellum: The Perspective of a Just-War Theorist.” Leiden Journal of International Law 20, no. 3, September 2007. https://doi.org/10.1017/S0922156507004268

Wensierski, P. "East Germany thrived on snitching lovers, fickle friends and envious schoolkids." Australian Financial Review, 23 December 2015. Last retrieved 5 May 2024 from https://www.afr.com/life-and-luxury/arts-and-culture/stasi-snitches-all-around-records-reveal-true-extent-of-telling-on-others-20151116-gkzu44

Just War Tradition as Compared to Realism

Introduction

This paper outlines at an extremely high level the Just War Theory and the rival realist theory. Both theories broadly describe the conduct of warfare but differ in their details as well as their aims. These differences are enumerated, and finally a cursory analysis of both is presented.

Just War Tradition

The Just War Theory is fundamentally a list of rules for restraining war - it is a set of criteria that must be satisfied in order for a war to be considered "just." It is founded on the belief that war can be a moral undertaking. JWT is thus a framework or guide for when to resort to force and how use that force. The Just War Tradition is the doctrine tracing the evolution of JWT by Christian thinkers.

The criteria in the JWT are divided into three stages: before (jus ad bellum), during (jus in bello), and after (jus post bellum). Jus ad bellum are the criteria for when a nation-state should resort to war or use military force in general. These criteria include that the leader declaring war have legitimate authority, that is to be waged for just causes and good intentions, and (maybe) that there is a high probability of success. Once war has broken out, conduct should be governed by jus in bello criteria: there should be discrimination between military and civilian targets (principle of non-combatant immunity), attacks should be performed only out of military necessity, and that force be limited by some doctrine of proportionality. Just post bellum is apparently a recent addition to JWT, and it concerns justice once the guns have fallen silent. There doesn't seem to be a short and stable list of criteria. This will be addressed in the conclusion.

Realism

This presentation of realism follows Frowe Ch 5. The core idea of realism is embodied by Cicero's phrase "laws are silent in times of war" (silent enim leges inter arma). This means that war lies outside of both moral and legal boundaries, so the only proper constraints on warfare are that actions should advance national interests.

Realism can be divided into two camps: prescriptive realism and descriptive realism. The former claims that war should not be regulated, the latter that war cannot be regulated. Frowe criticizes descriptive realism by noting that individual combatants do follow strict moral codes - they fight honorably. Prescriptive realism falls short because both sides of a war share common interests in protecting their citizens, their infrastructure, and their heritage, or so Frowe claims.

Comparison

JWT and realism have distinct aims: JWT seeks to reduce the frequency and severity of warfare, whereas realism focuses attention on the successful completion of warfare, with the possible consequence that wars would be shorter in duration but more brutal.

JWT and realism, at this level of abstraction, both accept the reality of violence and that, under certain circumstances, its usage is permissible. Also, both seem isolated from the "domestic analogy" - individual self-defense and national self-defense are treated as independent issues, which they have been historically for most nations. So, on the issues of violence, admissibility of violence, and the "domestic analogy" they are similar.

Neither theory directly address the relation between warfare and the military virtue of courage alluded to by Hegel (Holmes, pp. 286-287). JWT would seem to be more compatible as both justice and courage are moral virtues.

While both theories address conduct during war, neither address the conditions under which war should be ended. What counts as peace, and whether the conditions for peace should set at the beginning or near the end of a war, is left unspecified.

Frowe Ch 5 doesn't mention whether realism has its own jus ad bellum - the inapplicability of rules during warfare does not imply that rules cannot function before a war begins. If there are realist rules governing the initiation of conflict, they would certainly include likelihood of success as well as something to the effect that the war must be in the nation's self-interest. Other than this, we would expect both JWT and realism to have similar criteria for initiating warfare.

Frowe also doesn't mention whether there is a realist jus post bellum.

The primary difference between JWT and realism is in the conduct of war, the jus in bello. JWT posits that rules are needed to restrain the scope of warfare - protect non-combatants, force should be applied according to some scale of proportional response, and actions must serve some military necessity. With realism, the gloves are off - rules are legitimate to the extent that they further successful completion of the war.

Analysis and Conclusions

At this level of abstraction, both JWT and realism come off as "straw man" theories, particularly realism. This is understandable given the source material used. The details of JWT will certainly be fleshed-out, and it would be interesting to see a final form of the doctrine of proportionality. Something sorely missing in JWT at this level is the relation of national interest to the initiation and pursuance of war. Also missing is the targeting of military actions - it is just assumed that that military actions should be aimed at the enemy.

It is also curious that jus post bellum - justice following the conclusion of war - is seen as an afterthought. Even a cursory study of history shows that wars recur frequently, and the reason they repeat is either laid-out in print, such as in Mein Kampf, or can be directly experienced when travelling, like when visiting south of the Mason-Dixon Line. As such, any theory that attempts to limit the scope and severity of warfare cannot afford to ignore jus post bellum.

References

Frowe, H. (2015). The Ethics of War and Peace: An Introduction. 2nd Edition. Routledge.

Holmes, A. F. (2005). War and Christian Ethics. 2nd Edition. Baker Academic.