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Jus Post Bellum from the Jordanian Perspective: Implications for U.S. Policy Makers

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Jus Post Bellum from the Jordanian Perspective: Implications for U.S. Policy Makers

 

Simone Bak

 

The enduring and proverbial critique of the U.S.’s war on terrorism is that the U.S. entered it with no end game strategy in mind.[i] In the U.S.’s defense, the wars it fought post 9/11 were substantially different than the wars it had fought in the past. In particular, wars that targeted non-state actors fell under different categories for which the international laws of war possessed little answers.[ii] The just war theories which give reason to such laws similarly lacked development in jus post bellum, or the ethics which ought to define a war’s end game strategy. This essay seeks to demonstrate key ethical questions that arise as the U.S. continues to counter violent extremism in the Middle East. Ethical questions will be analyzed through the actions of an important U.S. ally in the war on terrorism, Jordan.

 

Why do Ethics Matter?

 

The ethics of war matter because they limit war’s consuming effects. This is not only a human rights calculation, but an imperative for sound national security strategy. Carl von Clausewitz, for instance, argues that war must have its limits, otherwise all other valid objectives of a state’s prosperity would be subsumed in total violence.[iii]

 

A main gap in the discourse surrounding the ethics of war is that it deals little with the theory and practice war’s end.[iv] This is particularly problematic because an ethical[v] objective of war is that it might be fought with peace in mind; a strategic objective of war is that it be a tool of a larger political purpose.[vi]  Thus, the unresolved nature of U.S. intervention in the Middle East, which focuses less on detailed planning for war’s end, illuminates just how underdeveloped the role of jus post bellum within Just War Theory studies is. An improved understanding of jus post bellum’s practice may afford policy makers better solutions for a less-terrorized world.

 

Furthermore, U.S. cultural understandings of war can skew its perceptions of appropriate solutions for conflict, especially in countries whose norms surrounding war and peace differ from its own.[vii] It is therefore essential for the U.S. to gain the viewpoints of partners like Jordan as it moves to eliminate serious threats posed by violent non-state groups like DAESH and Al Qaeda.

 

Why Apply the Ethics of War to Non-State Actors?

 

The international laws of war, to which the U.S. subscribes, traditionally apply to conflicts between states. In its treatment of violent extremist groups, the preferred U.S. practice is to remove the constraints imposed by the Geneva Conventions. In reality, International Law is unclear about the rights and responsibilities of non-state combatants.[viii]

 

Brian Orend’s analysis of non-state actors according to Just War Theory provide, perhaps, a clearer picture on their integration in the conduct of war. In The Morality of War, Orend states:

 

There is very little amendment to the just cause rule which is required to deal with these threats…nothing, in just war theory or international law, which says that aggression can only be committed by states. Aggression, recall, is the use of armed force in violation of a legitimate state’s right to either territorial integrity or political sovereignty. And states have these rights insofar as they help realize the human rights of their people. Ultimately, then, aggression is the violent violation of human rights. So, either states or non-state actors can commit aggression, which we have seen is what roots a morally justified resort to war. [ix]

While Orend applies just war theory to non-state actors in the beginning and duration stages of war, Orend’s analysis may as easily be applied to ending wars with these same groups. Of note is that Jordan is less comfortable with prosecuting groups like DAESH as a whole in post-conflict settings, because of the potential such action represents to legitimize DAESH’s role in the international system by affording them rights normally accorded to states. However, Jordanian officials do acknowledge that Jordanian individuals formerly involved in DAESH might be prosecuted as combatants, and that the Jordanian government may hold the same responsibilities which jus post bellum bestows on the victors of war.  These issues are discussed in the following sections.

 

Consequences for the Aggressor

 

International law and just war theory approach the end of the war with a series of consequences for the losing aggressor. The consequences include mandating proportional compensation from the losing nation, prosecuting war crimes of individual combatants in international tribunals, and military and political rehabilitation of the losing state back into the international system.[x]  Because Jordan legally prosecutes only individual fighters returning to Jordan after their rendezvous with DAESH abroad, most jus post bellum consequences could not be applied. For instance, the custom for international war is that states make treaties only with other states to resolve their conflicts; conversely, they do not make treaties with criminal networks or individuals. Further, Jordanian officials wouldn’t speak of military re-integration of DAESH as a group, because they do not acknowledge its rightful existence in the international system in the first place.[xi] This position differs significantly from the Allied treatment of Germany after WWII; while the Allies required “ultimate surrender” from the Nazi regime, Germany (under certain conditions) was still allowed to reintegrate militarily and politically into the International System.[xii] This, however, occurred with a level of acceptability because Germany is a state, whereas DAESH (despite its self-proclamations of statehood) is not.

 

The one area in which Jordan may similarly apply the laws of war to DAESH participants is in its treatment of foreign fighters, in which Jordan sometimes seeks their political rehabilitation. For instance, Jordan’s amended counterterrorism law mandates trial of convicted terrorists, depending on the level of involvement in the extremist organization. Military trials recognize that the laws of war may apply to individuals engaged in groups who employ terrorist tactics by designating them as combatants.[xiii] Traditionally, trials of combatants for war crimes can also function as a beneficial deterrent for repeat offenders and deters potential offenders from acting at all.[xiv] Jordanian officials also talk of reintegration programs for less-radicalized fighters, though such plans remain notional at best.[xv]

 

Critics of Jordan’s amended counter terrorism law argue that it robs Jordanian citizens of due process. Additional critiques cite the broad terms of the amendment, which could be applied at will for other acts of otherwise innocent civil disobedience.[xvi] Such problematic legal aspects of Jordan’s counter terrorism law will stand in the way of Jordan’s promised democratic reforms, which includes due process, and which are seen as key measures of deterrence for homegrown radicalization.[xvii]

 

Responsibilities of the Victors

 

A developing question within jus post bellum is the role of the victors in the post-war reconstruction process. While international law says little about the responsibilities of victors, Orend notes that victors must address the rights of their citizens to end war justly. This includes protecting citizens from the re-emergence of the threats which produced the conflict in the first place. The options for victors are thus to contain and/or reform their domestic, regional, or international systems to prevent a repeat of the past war.[xviii]

 

Jordan pursues both policies. Because of the transnational nature of groups like DAESH, Jordan cooperates with regional and Western partners to contain and eliminate the threat of DAESH cells world-wide. While military efforts have been the predominate national security tool of choice, Jordanian officials would prefer improved access and ability to share intelligence information.[xix] In order to reform the systems in which they exist, Jordan promotes a moderate version of Islam throughout the Middle East and the rest of the Muslim world. Enshrined in the Amman Message, Jordan envisages a type of universally adhered to Islam that bans declarations of apostasy between Muslims, promotes inclusivity between Muslim sects and between Muslims and other religions, advocates tolerance for women, and a non-aggressive form of jihad. Jordan teaches the tenets of the Amman message schools nationwide, and campaigns for the adoption of the Amman Message in school curriculums worldwide.[xx]

 

Defining Peace

 

International law defines peace simply as the absence of war. However, jus post bellum

claims that an absence of war is not enough to create lasting peace.[xxi] Jordanian officials attest to the necessity of employing non-military forces in order to eliminate the powerful sway of DAESH’s ideology in Jordanian society. The education initiatives of the Amman message are essential to disseminating norms of tolerance and peace throughout society. Additionally, Jordanian officials mention the resolution of the Israeli-Palestinian conflict as a necessity to reducing DAESH’s effectiveness, as current Western support of Israel to the detriment of the Palestinians provides a powerful recruiting tool for extremist groups.[xxii] Political and economic reforms are also necessary for lasting peace, for they give Jordanian citizens a voice in their country’s future and a hope for their own material opportunities, both of which are deterrents to joining extremist groups.[xxiii]

 

Conclusion

 

The ethical issues presented in Jordan’s practice of jus post bellum is more involved and complex than the U.S.’s strategy, which focuses on kinetic activities against violent extremist group cells and connected individuals.[xxiv] Furthermore, by involving multiple levels of statecraft (military, economic, social and political), Jordan demonstrates a jus post bellum principle in its war against terrorism, namely that peace is not simply an absence of war, but rather a positive effort to reform systems towards a more productive solution. However, Jordan’s current human rights conditions, and lack of true political and economic reform will likely stand in the way of its goals to create a positive peace. For the U.S., the fact that it is still neck-deep in Middle Eastern wars should call into question its current strategies, which like jus post bellum, lack the attention it deserves by both policy and academic experts. To improve upon jus post bellum, ethicists ought to further delve into its relationship to the rest of Just War Theory. To improve its end game strategies in the Middle East, the U.S. ought to incorporate a more solid set of exit-strategy ethics and take better heed of perspectives from partners like Jordan while doing so.

 

End Notes

 

[i] Brian Orend, The Morality of War (Peterborough, Ontario: Broadview Press, 2006), 164.

[ii] William K. Lietzau, “Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism,” Max Planck Yearbook of United Nations Law 8 (2004), 384-87.

[iii] Clausewitz, Carl Von, On War, edited by Howard, Michael and Peter Paret. (Princeton, NJ: Princeton University Press, 1984), Book 8 Ch. 6.

[iv] James M. Dubik, Just War Reconsidered: Strategy, Ethics, and Theory (Lexington, Kentucky: University Press of Kentucky, 2016), 11-13.

[v] Orend, The Morality of War, 160-62.

[vi] Clausewitz, On War, 87.

[vii] Isaiah Wilson, Thinking Beyond War: Civil Military Relations and Why America Fails to Win the Peace, (New York: Palgrave MacMillan, 2007), 11.

[viii] George H. Aldrich, “The Taliban, Al Qaeda, and the Determination of Illegal Combatants.” American Journal of International Law 96, no. 4 (2002): 891–98.

[ix] Orend, The Morality of War, 160-62.

[x] Orend, The Morality of War, 160-186.

[xi] Interview with Sufyan

[xii] Orend, The Morality of War, 160-186.

[xiii] Jordanian Government Official # 2(anonymous), “Just War in the Middle East: The Jordanian Perspective,” Interview by Simone Bak, August 1, 2018.

[xiv] Orend, The Morality of War, 165.

[xv] Jordanian Government Official #1 (anonymous), “Just War in the Middle East: The Jordanian Perspective,” Interview by Simone Bak, July 31, 2018.

[xvi] Sara Obeidat, “Jordan’s Anti-Terrorism Law: Another Step Against Reform,” 7iber, June 25, 2014, https://www.7iber.com/2014/06/jordans-anti-terrorism-law-another-step-against-reform/

[xvii] Official #1, interview.

[xviii] Orend, The Morality of War, 180-81.

[xix] Jordanian Government Official # 3 (anonymous), “Just War in the Middle East: The Jordanian Perspective,” Interview by Simone Bak, August 2, 2018.

[xx] “The Amman Message” The Official Website of the Amman Message, November 2004, http://ammanmessage.com/the-amman-message-full/ 

[xxi] Orend, The Morality of War, 180-81.

[xxii] Official #1, interview.

[xxiii] Ibid.

[xxiv] See, for example Nicholas Rostow, “Targeted Killing of Terrorists,” Strategic Forum 286, (March 2014): 1-4.

 

 

Categories: ethics - war on terror - Jordan

About the Author(s)

Simone Bak is a Master of Arts candidate at the Georgetown University’s Security Studies Program, where her studies focus on Security Issues in the Middle East and US National Security Policy. During the Summer of 2018, Simone interviewed key senior Jordanian government officials for their views on how jus post bellum ought to be practically implemented in the context of their war against DAESH. Simone speaks Arabic and spent time living and working in the Middle East on a Boren Scholarship. She is a recipient of the Department of Defense Joint Civilian Service Achievement Award.

Comments

As a supplement to my thoughts below, consider the following:

Question No 1:  So why is the concept of "jus post bellum" not addressed in international law?

Answer No 1:  Because, obviously, the concept of "outlying state and societal transformation" (to wit: the  "post-war reconstruction process" noted in the quoted item above?); this such process is strictly prohibited by international law.  (This non-interference principle, in fact, being the very basis for international law?)

Question No 2:  So, should we see the introduction of the "jus post bellum" concept as, in fact, (a) a means for the U.S./the West to circumvent -- and/or to otherwise get around -- the non-interference (in the political, economic, social, religious, values, etc., order of other states and societies) requirements of international law; this, so as to (b) achieve our "state and societal transformation" goals, re: other states and societies, anyway/in spite of such law?

Answer No 2:  Exactly.  The introduction of the "jus post bellum" concept (and the R2P concept as well?); this is best seen as the U.S./the West attempting to make new law -- this, so as to achieve its enduring "transformative" purposes re: other states and societies.  (Herein, should we not acknowledge that the similarly "transformative-driven" Soviets/the communists would have, if they had won the Old Cold War, done this exact same thing?)

Bottom Line Thought:

Thus, it is not the protection of one's own citizens which seems to drive the "transformative" concepts such as "jus post bellum (which tends, as the Treaty of Westphalia seems acknowledges, to endanger one own citizens instead?). 

Rather, it is the "universalist" designs -- and the deep political convictions related thereto (as held by such great powers as the Soviets/the communist and the U.S./the West) -- which best explain why, rather than adhere to international law, we now seek to break international law (see the recent Iraq War?) or (b) make new law (see "jus post bellum and the R2P concepts).

(We should note that President Trump seems to understand and, in fact, seems to have formally acknowledged this  "transformative agenda = cause of war/endangerment of one's citizenry" nexus.  And, accordingly, has now attempted to disengage somewhat from our such traditional "transformative" practices?)

Note:

Based on my thoughts immediately below, Jordan (who appears to be pursuing a "transformative"/"modernizing" agenda -- rather than abandoning same) would, accordingly, NOT seem to be acting in a manner which would:

a.  "Protect its citizens from the re-emergence of the threats which produced the conflict in the first place."  (To wit: the threats posed to the Islamic World by a "transformative"/"modernizing" agenda -- in this case also, it would appear, somewhat along modern western political, economic, social and value lines?)

And thus, based on my thoughts immediately below, Jordan would NOT seem to be acting in a manner which would:

b.  "Contain and/or reform their domestic, regional, or international systems;" this, so as to "prevent a repeat of past wars."

 

From our article above:

"A developing question within jus post bellum is the role of the victors in the post-war reconstruction process. While international law says little about the responsibilities of victors, Orend notes that victors must address the rights of their citizens to end war justly. This includes protecting citizens from the re-emergence of the threats which produced the conflict in the first place. The options for victors are thus to contain and/or reform their domestic, regional, or international systems to prevent a repeat of the past war."

Questions:

If the cause of certain "terrorism" can be traced to the threats posed, for example, to the Islamic World; this, by the "modernization" efforts of both the Soviets/the communists and the U.S./the West. 

(Entities who, both in peace and in war, sought/seek to transform other states and societies more along their own, unusual and unique, political, economic, social and value lines.  In this regard think, for example, of both Soviets, and indeed our, significant efforts to alter the status/the role of women in the Islamic World.) 

Then, other than by the U.S./the West abandoning its such "transformative" efforts, how are we to: 

a.  Address the rights of both our (and indeed their?) citizens;" this, "to end wars justly?"  And, other than by abandoning our "transformative" agenda, how are we to: 

b.  Protect our (and indeed their?) citizens; this, from "the re-emergence of the threats which produced these conflicts in the first place?" 

Thus, is it in this manner (to wit: a re-assertion of and a re-commitment to the principles and requirements of the Treaty of Westphalia -- which clearly identify attempts at outlying state and societal "conversion"/"transformation;" this, as being the "root cause" of significant conflict?); is it in this specific manner (abandonment of our transformative agenda) that we now:

a.  "Contain-and/or reform our domestic, regional or international systems;" this, so as to: 

b.  "Prevent a repeat of past wars."

 

Of course what is usually left out are a couple of things. Jordan and Syria had no interest in giving up any land for a Palestinian state (though one never existed before), but are quick to condemn Israel. The Palestinians, supported by Hamas, are not interested in any sort of peace (unless, perhaps, Iran says so or if Iranians arms and money are cut off).

Ceding any land isn't apparently good enough for the Arabs, nor the United Nations. However, being invaded a number of times by the Arabs who want to kill all Jews provides a lesson that some people still don't get.

Bill C.

Wed, 09/05/2018 - 12:27pm

I believe that it is error to suggest, as our author does in his first sentence above, that the U.S. entered the war on terror with no end game strategy in mind.

Rather, the end game strategy of the United States -- in both peace and in war (and until just recently) -- would seem to be exceptionally well known; this being, to cause (by persuasion if possible but by force when considered necessary) other states and societies to adopt our ideology -- and our related our way of life, way of governance, values, etc.  

Thus -- it is in the context of this "ideological contest" shall we say (and much as was the case during the Old Cold War?) that, I suggest, we might best consider the following from our author "conclusion" paragraph above:  

BEGIN QUOTE

Jordanian officials attest to the necessity of employing non-military forces in order to eliminate the powerful sway of DAESH’s ideology in Jordanian society.

END QUOTE

Thus, based on my thoughts above, might we say that it is only recently that the U.S. has determined to pursue the war on terror with no end game in mind?