Against Victory: Decolonising Justice After War

Abstract

This article makes a case for a theoretical reorientation of post-war justice that moves away from the colonial imaginaries of military victory in just war theory. This intellectual tradition typically theorises a just peace from the perspective of ‘just victors’ interested in the definition of their rights and responsibilities in the aftermaths of a military confrontation against ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’. I argue that this approach finds its historical roots in the colonial imaginaries of the ethics of conquerors, which have been reformulated in the modern languages of rights and responsibilities. Coloniality explains such historical continuities and discontinuities in this intellectual tradition. The origins of this conception are not only of theoretical interest but also of practical relevance due to the entrenchment of colonial relations of punishment, protection and education rather than political relations of dialogue, compromise and mediation as the foundations of post-war justice.

In April 2021, the President of the United States announced the withdrawal of troops from Afghanistan after almost 20 years of the so-called ‘war on terror’, which led to an invasion allegedly launched on the grounds of self-defence after the 9/11 terrorist attacks in 2001. This invasion, like the US-led war on Iraq, is still part of international debates on the morality of long-lasting occupations of foreign territories. The withdrawal, besides chaotic and abrupt, ushered in the end of ‘an era of major military operations to remake other countries’. ¹ US-led invasions of Afghanistan (2001–21) and Iraq (2003–11), as well as their subsequent state-building operations have sparked the imagination of just war theorists as archetypes of justice after war. These experiences have inspired most contemporary reflections on the rights and responsibilities of just victors, as normally discussed under the label of jus post bellum.

One of the main tenets of just war theory is that states are morally permitted to go to war only in response to an unjust aggression or to neutralise a criminal regime that threatens international peace or systematically violates the basic rights of its own citizens. ² There exist in this tradition ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’ against whom large-scale violence is morally permitted. ³ Restoring the pre-war system of rights and responsibilities suddenly disrupted by an unlawful aggression must be, in principle, the aim of just victors once the armed conflict is over. ⁴ Even so, justice after war has also been associated with the idea of a better or more just peace. This is often translated into the reconstruction of political regimes in light of liberal-democratic ideals, as well as the long-lasting occupation of foreign territories in a situation of institutional collapse after war.

The reconstruction and occupation of foreign territories as envisioned by just war theorists, however, are by no means unproblematic enterprises. These theoretically benevolent initiatives may easily erode the self-determination of defeated peoples and territories, thereby becoming imperialistic or paternalistic projects that might perpetuate power imbalances and hinder the achievement of a lasting peace. Just war theorists usually admit that this is an actual risk. Their theoretical concern is, to use Liane Hartnett’s more sophisticated formulation: ‘how do we navigate these responsibilities in ways that are neither imperialistic nor paternalistic?’. ⁵ This paper’s concern is elsewhere: I argue that the emphasis on the post-war rights and responsibilities of just victors finds its modern origins in the ethical concerns of European conquerors, as premised upon relations of punishment, protection and education at the international level. As such, this notion of post-war justice leaves little room for political relations of compromise, dialogue and mediation.

This article focuses on the following question: what explains the theoretical continuities and discontinuities between the ethics of conquerors and the rights and responsibilities of just victors? Although early modern debates rested upon an image of ‘civilised’ nations confronted by ‘uncivilised’, ‘barbaric’ and ultimately ‘inferior’ peoples and cultures, the contemporary analysis of post-war rights and responsibilities builds upon the dualist image of ‘just victors’, on the one hand, and ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’, on the other. In both images, the same theoretical pattern persists: an account of post-war justice based upon colonial relations of protection, education and punishment. I explain such theoretical continuities and discontinuities through the concept of ‘coloniality’. This concept is a shorthand for the more sophisticated patterns of colonial power and control associated with hierarchical classifications of peoples and cultures premised upon their position in the supposedly universal arc of civilisation. ⁶ Taking into account these colonial origins, I explore whether it is possible to theorise post-war relations in terms other than punishment, protection and education. This paper therefore also outlines a decolonial reformulation of post-war justice as primarily informed by political relations of dialogue, mediation and compromise. It is from this vantage point that post-war mechanisms of justice could move away from their implicitly colonial assumptions about racial and cultural hierarchies.

This analysis contributes to decolonial critiques of the foundations and assumptions of international relation (IR) studies and global ethics. ⁷ More particularly, the argument is an intervention in decolonial critiques of just war theory. ⁸ While these critiques usually revolve around the ad bellum and in bello components, my focus is, by contrast, on the post bellum component of this intellectual tradition. This component has received less critical attention on the grounds that (1) jus ad bellum and jus in bello have been the traditional concerns of just war theory, whereas jus post bellum is normally understood as a more recent development and (2) jus ad bellum and jus in bello considerations tend to foreshadow post-war categories and principles in the sense that, for instance, the conduct of combatants on the battlefield determines their post-war responsibilities. This paper rejects the alleged irrelevance of jus post bellum as a site of decolonial analysis since this field more clearly epitomises the colonial assumptions that often underpin just war categories and principles. ⁹

There are other slightly different, but closely related, strands of critical engagement with just war thinking. On the one hand, realist-orientated interpretations underscore the concealment of power relations at play in the languages of morality and justice within this intellectual tradition. ¹⁰ On the other hand, comparative approaches to just war theory unearth alternative sources of normative theorising beyond the Eurocentric canon. ¹¹ The decolonial interpretation, while sharing realist and comparative themes, focuses on the historical continuities and discontinuities of colonial assumptions in the articulation of just war principles and categories, as well as the theoretical and practical potential for their renegotiation otherwise. As such, this decolonial turn foregrounds mechanisms of post-war justice and peacebuilding that prioritise political relations of dialogue, mediation and compromise over-educative, protective and punitive relations.

To further specify the scope of this paper, the argument here pertains to the occupation and control of territories and peoples by military victors where there has existed a historical record of domination based upon assumptions about racial and cultural hierarchies. This delimitation rules out, for example, illustrations in just war theory extracted from the occupation of Nazi Germany after the Second World War or the defeat of the United States in Vietnam. In the first case, post-war relations of punishment, education and protection were not grounded in colonial imaginaries about the racial or cultural inferiority of Germans. In the second case, the defeat of the United States is more accurately associated with the effects of an unsuccessful campaign than with the occupation and reconstruction of foreign territories. While it is true that these illustrations have conventionally played a significant role in the articulation of just war categories, jus post bellum has gained theoretical traction in international debates only after the US-led occupations of Iraq and Afghanistan as part of the ‘war on terror’. I understand these occupations as the primary sources of post-war imaginaries today and their emphasis on the rights and responsibilities of just victors.

This article proceeds as follows. The first section reconstructs a decolonial analysis of just war theory. I illustrate this analysis in the second section through the subtle rationalisation of colonial violence in moral distinctions between civilians and combatants in the ‘war on terror’. The third section characterises post-war justice in just war theory as largely revolving around the rights and responsibilities of just victors. The fourth section examines this conception of post-war justice and its reliance upon colonial imaginaries. The fifth section deals with the occupation and reconstruction of defeated regimes and territories as archetypes of the punitive, protective and educative relations emanated from these colonial assumptions in just war theory. To cultivate a better conception of justice after war, the last section offers a decolonial reorientation of post-war justice towards a just peace grounded in political relations of dialogue, mediation and compromise.

Just War Theory Through Decolonial Lens

In a critical exchange, Kimberly Hutchings posed a question of paramount interest for just war theorists: ‘Why are the languages of just war theory or of victory seductive and to whom?’ ¹² The answer to this question is by no means a straightforward one, but it touches upon one of the central themes of decolonial debates and their critique of Eurocentrism in the production and dissemination of knowledge. There is no doubt that, perhaps like no other intellectual tradition today, just war theory remains mostly, if not exclusively, associated with Eurocentric sources. ¹³ There exist, nonetheless, interventions from different traditions of political thought on the interplay between justice and war, which are often overlooked or dismissed by just war theorists. ¹⁴ This is not merely a historiographical anecdote without repercussions on the realm of normative theorising. The assumption that philosophical knowledge is totally disconnected from its locus of enunciation constitutes what Linda Alcoff describes as the ‘transcendentalist delusion’, that is, ‘a belief that thought can be separated from its specific, embodied, and geo-historical source’. ¹⁵

The critique of this delusion has been the dominant theme in the scholarship on the coloniality of knowledge and the geopolitics of knowledge production. ¹⁶ This section outlines the main contributions of this decolonial framework to the analysis of the interplay between justice and war. Some of the most recent critiques of just war categories have pointed out the historical and geopolitical background behind this intellectual tradition and its theoretical role in the legitimation of colonial violence. ¹⁷ The argument is that, even though the era of European colonialism is seemingly over, some just war categories still rest upon a worldview that assumes the superiority of European cultures and peoples.

To substantiate this claim, it is necessary to make a distinction between ‘colonialism’ and ‘coloniality’. Colonialism is usually understood as ‘the subjugation of one people to another and the political and economic control of a dependent territory (or parts of it)’ and, as such, is largely repudiated as a form of structural injustice in the contemporary world. ¹⁸ Coloniality, by contrast, outlives colonialism and is more associated with ‘the control of subjectivity, culture, and especially knowledge and the production of knowledge’. ¹⁹ Coloniality, as originally coined by Aníbal Quijano, refers to the enduring effects of colonialism, as well as the hierarchical structures established and perpetuated between colonial powers and colonised subjects. These hierarchical structures are constitutive of European modernity not only in terms of the astronomical gains obtained through the exploitation and plundering of territories and peoples but also in the sense that it is by contrast to these peoples and territories that modern Europe has understood itself as unified project of racial and cultural superiority. The constitutive interdependence of these historical and political processes is typically described as European modernity/coloniality.

In principle, the term coloniality is associated with the long-lasting effects of colonialism on the production and dissemination of knowledge. I shall focus here on this epistemic dimension, but coloniality has also shaped spheres as diverse as ontological questions, ²⁰ sexual and gender norms ²¹ and global capitalism. ²² It is from this vantage point that coloniality denotes an ongoing project of domination and control that underpins, for example, the enormous wealth inequalities in global terms, the Eurocentric dynamics of knowledge production and scientific research or the treatment of some lives as less valuable than others in war contexts. As such, the critique of coloniality foregrounds a political reorientation of theoretical categories and principles that aims to transcend these hierarchical classifications of peoples and cultures. ²³

Based on this critical project, it becomes relevant to consider what elements of just war theory remain shaped by colonial assumptions. The idea of just wars, to be perfectly clear, did not start with European colonialism five centuries ago. The intellectual history of just war theory usually finds the origins of this tradition in pre-modern thinkers, such as Augustine of Hippo or Thomas Aquinas. In its modern iterations, however, this tradition has been shaped by the contributions of thinkers with a clearly Eurocentric and colonial worldview, such as Hugo Grotius, Emmerich de Vattel, Francisco de Vitoria and John Locke, who undeniably theorised and articulated their philosophical arguments and just war principles from the standpoint of colonial powers.

In what follows, I elaborate on the influence of these colonial experiences on the modern reinvigoration and reformulation of just war categories. This historical background, often overlooked by just war theorists, led to the refinement of theoretical arguments and the articulation of philosophical questions from the perspective of colonial powers. In his reconstruction, Alexis Keller, to give an example, examines the Eurocentric origins of the modern laws of war and the contributions of these reflections to European expansionism. ²⁴ Keller’s analysis starts with the idea that the so-called ‘discovery’ of the ‘New World’ elicited two questions for political thinkers in Europe: (1) what are the rights of Europeans in relation to the occupation of these new territories? (2) Is the resort to war against Indigenous peoples in these territories morally permitted? ²⁵

John Locke (1632–1704), expanding on Hugo Grotius’ arguments, provided the most influential answer to the first question. ²⁶ It is in this sense that Locke’s theory of property is often associated with the dispossession of Indigenous peoples. ²⁷ Locke’s theory of property holds that when a person mixes her labour with unowned resources from nature, such as land, she thereby acquires the property right to that resource. It is on this basis that the colonial appropriation of territories was philosophically defended as the just acquisition of property over uncultivated lands. In concrete terms, the appropriation of Indigenous lands as terra nullius. It comes as no surprise that Locke’s argument was later complemented by the ‘agricultural argument’ in the work of Emmerich de Vattel, a canonical just war thinker. ²⁸ Although central for the rationalisation of colonial violence, the theoretical analysis of this question has not been stricto sensu a war-related debate in the sense of dealing with questions about the just causes of war or the conduct of combatants on the battlefield.

The second question, by contrast, has been conventionally within the remit of just war thinkers and originated an intense discussion on the justification of large-scale violence against Indigenous peoples. The Valladolid Debate (1550–1) between Juan Ginés de Sepúlveda (1490–1573) and Bartolomé de las Casas (1484–1566) over the conquest the Americas represents, most emblematically, the modern origins of just war categories. ²⁹ This debate revolved around two well-defined positions: on the one hand, Sepúlveda had a broader conception of the rights to wage war not only in cases of aggression but also to save innocent lives and uphold natural laws against barbarism. Las Casas, on the other, confined the rights to wage war to cases of injuria and held a more sceptical view about the clear-cut distinction between barbarism and civilisation. ³⁰

The Valladolid Debate, more importantly, is understood by decolonial thinkers, particularly Sylvia Wynter and Enrique Dussel, as an event that represented the philosophical transition towards European modernity. ³¹ Sylvia Wynter understands this debate as a transitional moment between two different statements of ‘the human’: a theocentric conception based upon who is a Christian in contrast to a humanist and logocentric conception premised upon who has reason. ³² In Wynter’s reconstruction, this theological debate encapsulates the paradigm shift that inaugurates European modernity and the transit from a hierarchical understanding of living beings based upon religious grounds to its secularised version. ³³ As a result of this philosophical transition, moral, legal and political entitlements, including post-war categories and human rights, have been ultimately premised upon how close one is to this logocentric and secular image of ‘the human’. ³⁴

Furthermore, the origins of European modernity, emblematically captured by the Valladolid Debate, inaugurated an era of philosophical solipsism. This solipsism has acquired the negative connotation of a Eurocentric method ‘that requires no dialogic interlocutors, no collective process, and yet can achieve a truth for all’. ³⁵ Dussel explains this point through the distinction between the ‘ego conquiro’ and ‘ego cogito’. European modernity did not exactly start, according to Dussel, with the Cartesian dictum ‘I think, therefore I am’, but it was preceded by a more fundamental claim: ‘I conquer, therefore I am’. ³⁶ The former corresponds to the ego cogito and the latter to the ego conquiro. The ego conquiro represents the solipsism of European conquerors and their unilateral and violent imposition of a project of civilisation. ³⁷ The decolonial critique of this project, by contrast, rests upon relations of dialogue, mediation and compromise.

At the same time, the Valladolid Debate has played an important role for just war theorists. Michael Walzer interprets this event as a ‘heroic moment from the history of the academic world’ in the sense that an unjust military campaign was called into question, inaugurating thereby the modern interest in just war categories and principles. ³⁸ While just war theorists conventionally reconstruct the Valladolid Debate as a crucial milestone in this intellectual tradition, there has been, as I shall explain below, little engagement with the theoretical continuities and discontinuities between these colonial debates and their present-day repercussions on just war thinking.

Uses and Abuses of Just War Theory

It is historically true that colonial debates have played a significant role in the modern development of just war theory. European powers have invoked just war categories to legitimise colonial campaigns as the Valladolid Debate demonstrated. Just war principles, nevertheless, are traditionally interpreted as inspired by humanitarian motivations. Their fundamental aim has been the moral and legal regulation of large-scale violence by imposing stringent restrictions and responsibilities on political leaders and combatants when starting, conducting and, more recently, ending wars. How is such a humanitarian tradition also instrumental to colonial projects when interpreted in decolonial terms? It seems to be the case that, on the contrary, just war thinkers have often questioned the appetites of colonial powers upon normative grounds.

This apparent paradox is explained by the fact that just war theory usually plays an ambivalent role insofar as it enables and restricts the resort to large-scale violence. Achille Mbembe sheds light on this ambivalent role of the regulation of armed conflicts and the laws of nations. ³⁹ Colonialism, according to Mbembe, did not occur entirely against the regulations of war and the laws of nations. This is because colonised peoples ‘scarcely figured as fully entitled legal subjects’. ⁴⁰ The result was no other than the exclusion and therefore morally and legally differential treatment of colonised subjects. Power exists, according to Mbembe, not as the production of laws and institutions but as the decision on who lives and who dies. Mbembe is interested in the modern regulation of war as the ultimate expression of that power. Such a power has never operated in neutral terms as exemplified by the application of different and more violent regimes to colonised subjects. Concisely, the laws of war governing natives were always different from those applied to colonial settlers.

While a vibrant debate on the limits of armed conflicts was taking place in Europe, this moral framework at the same time enabled the most violent acts against those deemed as ‘not human’ or ‘not-fully human’. Such an exclusion, in other words, transformed large-scale acts of violence and domination into legitimate aggressions against those conveniently disqualified from the moral and legal codes of war. ⁴¹ These war regulations and their exclusions, according to Mbembe, have always played an instrumental role in the sense of working ‘to free power holders of any meaningful constraint, whether in the exercise of war, in criminalizing resistance, or in the government of the everyday’. ⁴² This has been the ambivalent function of just war thinking and the modern regulation of military enterprises based upon the distinction made by European philosophers like Vitoria, Suárez and Grotius between the moral realms of war and conquest, confining the former to European states and the latter to colonised peoples and territories. ⁴³

The Valladolid Debate illustrates the double function of just war theory. Sepúlveda was by no means a militarist and, in his opinion, there are only three just reasons for waging war: (1) to repel an unjust aggression; (2) to bring back the properties unjustly taken away from us; (3) to punish criminals not yet hold accountable. ⁴⁴ These ad bellum constraints, however, did not fully apply to those he considered in a natural condition of obedience due to their ‘barbaric’ traditions and cultures. ‘Barbarians’, unlike colonial powers, were not entitled to sovereign rule, according to Sepúlveda, and there existed less clear and less frequent but no less just reasons for waging war when they resisted the rule of their superiors. ⁴⁵ It is in response to this argument that las Casas developed a more nuanced distinction between civilisation and barbarism and therefore had a more restrictive account of the reasons of European powers to wage war on Indigenous peoples.

Gabriel Mares offers an illustration of the echoes of such debates in just war theory. ⁴⁶ Mares critically engages with the recent application of the principle of distinction in the context of the ‘war on terror’. The principle of distinction holds that there must be a clear differentiation between combatants and non-combatants. This principle, more concretely, holds that soldiers are permitted to target only combatants while sparing non-combatants from intentional harm. Some just war theorists, according to Mares, tend to relax the principle of non-combatant immunity when civilians indirectly contribute to the armed conflict. The illustrations often come from civilians living or working in areas with a historical record of colonialism and where terrorist organisations operate. The ‘innocence’ of these civilians is theoretically questioned and that has turned them into legitimate targets of war-related harms in some strands of the just war tradition.

This more lenient interpretation of the distinction between civilians and combatants, however, has colonial connotations. ⁴⁷ The treatment of colonial settlers by just war theorists has tended to be much more lenient even when colonial settlers are not innocent civilians and the appropriation of land after the displacement of colonised peoples constitutes a form of violence. Even so, most just war theorists are often reluctant to the idea that colonial settlers can be legitimate targets. ⁴⁸ Mares illustrates this differential treatment in the influential condemnation of the acts of terrorism committed by the Front de Libération Nationale during the Algerian War of Independence (1954–62) as a paradigmatic case of the moral distinction between civilians and combatants. ⁴⁹ This has been the dominant interpretation based upon a strict application of the distinction between civilians and combatants in contexts of violence against colonial settlers.

What this differential treatment reveals, according to Mares, is a tacit rationalisation of settler colonial violence. The distinction between civilians and combatants in just war theory is often undermined when applied to the acts of violence from colonial powers, revealing thereby the persistence in this tradition of racial and cultural hierarchies. This rationalisation of colonial violence finds its historical roots in modern just war theory and its underlying assumptions about the classification of races and cultures in the supposedly universal arc of progress and civilisation.

The reverberations of colonial debates in just war theory are by no means confined to distinctions between civilians and combatants. This decolonial analysis of just war categories and principles, however, tends to be more contested and deserves further examination since decolonial critics of just wars may be accused of falling prey to the ‘genetic fallacy’. ⁵⁰ The validity of a norm or practice does not entirely rest upon its contextual origins and historical development. Just war categories, in fact, may equally mobilise emancipatory and oppressive projects and therefore nothing is essentially ascribed to this intellectual tradition due to its historical background. Although this objection needs to be taken seriously, it is also important to note that decolonial reformulations aim at the re-contextualisation and potential renegotiation of just war principles in light of their potentially colonial assumptions rather than their rejection altogether. ⁵¹ Having explained this, I shall move to the dominant theorisation of post-war justice as the ethics of victors.

Post-War Justice as the Ethics of Victors

In his reflections on justice after war, Michael Walzer, the political theorist who reinvigorated modern debates in just war theory, understands post-war justice as a set of moral principles whose application presupposes the existence of a just state that has embarked on a successful military campaign. ⁵² In his words, just post bellum assumes the ‘victory of the just warriors and ask[s] what their responsibilities are after victory’. ⁵³ This approach shapes most of the core debates on justice after war in recent times. ⁵⁴ Some of the seminal ideas behind this conception can be traced back to Walzer’s celebrated Just and Unjust Wars, which offers normative guidance not only in terms of fighting but also winning well. Walzer concludes that just victors must aim at the restoration of the pre-war situation, but sometimes victories on the battlefield must also lead to the achievement of a better peace. According to Walzer, a just war aims to restore the status quo ante bellum, such as the international borders after a territorial aggression. Just victors, nonetheless, are sometimes morally required to promote a better peace than the pre-war situation.

Most just war theorists have defined the main tenets of post-war justice in similar terms. Brian Orend and Gary Bass, pioneers of this debate, articulate their principles of justice after war from the perspective of just victors that have reacted to an unjust aggression or embarked on a successful military campaign in a foreign territory. ⁵⁵ Post-war justice, in their view, deals with four main areas of theoretical discussion. ⁵⁶ (1) The rights and responsibilities of states in the reconstruction of defeated powers. (2) The economic compensations for the costs incurred in a just war. (3) The punishment of unlawful combatants and their political leaders. (4) The compensation and reparation of those unjustly affected by war-related crimes and gross human rights violations. ⁵⁷ In light of these concerns, the central question of post-war justice is no other than: what are the moral responsibilities and rights of just victors once the armed conflict is over?

While in many respects this framework is the result of Orend’s and Bass’s expansions on some of the seminal ideas on post-war justice in Walzer’s work, this development has been by no means monolithic. Its proponents offer different principles and definitions in relation to the rights and responsibilities of victors. The consensus here does not come from substantive arguments, but from the articulation of moral questions from the standpoint of just victors. This includes the post-war reflections of theorists as diverse as Alexander Bellamy, Gary Bass, Mark Evans, Doug McCready, Brian Orend, Lonneke Peperkamp and Michael Walzer. ⁵⁸ It is true that some just war theorists have addressed other questions about the end of armed conflicts, ⁵⁹ but the most influential approach has revolved around the post-war rights and responsibilities of victors.

The emphasis on the rights and responsibilities of victors, however, is not the product of a mere coincidence in historiographical terms. A just peace has been typically associated in jus war theory with what Francisco de Vitoria (1483–1546), in his lectures On the American Indians, explained as the duties of Christian charity. ⁶⁰ In his analysis, Vitoria claimed that moral constraints regulate the conduct of victors in the aftermaths of war. ⁶¹ Writing in the terminology of rights and responsibilities, modern just war theorists come to a similar conclusion in the sense that victors are not allowed to take advantage of their privileged position once the war is over. Those on the winning side after all might be tempted to abuse their military power, extracting economic and political gains from their enemies and sowing the seeds thereby of future wars. ⁶² This conception of post-war justice, accordingly, tends to connect post bellum arguments with the right to wage war in the first place in the sense that ‘if a war is justly fought to vindicate violated rights, then it has justly been solved when those rights have been restored’. ⁶³

Most just war theorists not only agree on the idea of moral restraints in the aftermaths of war, but also often make a case for a more active role of just victors in the reconstruction of defeated regimes and the promotion of a better peace. ⁶⁴ This line of argument is allegorically explained by the ‘pottery barn’ dictum: ‘if you break it, you own it’. In his comments on the retrospective tendencies of post-war justice, Seth Lazar alludes to this principle, already present in public debates on the occupation of Iraq and Afghanistan, ⁶⁵ in the sense that just victors acquire some additional responsibilities for the reconstruction of those political regimes in a situation of institutional collapse as a result of war. ⁶⁶ Had the US-led alliance simply left after declaring ‘victory’ in Iraq and Afghanistan, that would have brought about even more suffering for the Afghan and Iraqi peoples. In allegedly acting on behalf of the moral order, just victors in this paradigm acquire some additional responsibilities to prevent a civilian catastrophe once the smoke clears and defeated regimes are effectively unable to satisfy the basic needs of their own citizens. Walzer, in this instance, argues that sometimes doing the right thing ironically brings with it more burdens for just victors. This reconstruction means not simply the restoration of defeated regimes but their replacement in pursuit of achieving more liberal-democratic ideals. ⁶⁷

This conception of justice after war often works with a well-defined, but overly narrow, set of presuppositions: State A wages a just war against State B. By definition, State B is assumed here as an ‘unjust aggressor’ or an ‘inherently aggressive and murderous regime’. After an almost mythical confrontation between the forces of good and evil, combatants on the side of justice emerge as victors and face some ethical dilemmas as to what to do with their defeated enemies. Moral questions in this case naturally focus on the conduct of State A, which fought on the side of justice and won. Is State A responsible for the reconstruction of the institutions and economy of its former enemies? Is State A entitled to some economic compensations for the costs of an armed conflict in defence of the international order? Must State A prosecute the leaders and combatants of State B for their war-related crimes and acts of aggression? These are at least some of the normative questions associated with a just peace in this strand of just war theory.

Normative questions, so defined, rest upon dualist assumptions that require further examination, some of which I outline here. Firstly, moral arguments in this paradigm are grounded in the sheer fact that military power enables victors to decide unilaterally on the best course of action. Wars, secondly, tend to be envisioned as a confrontation of states in the international arena with a clear victory on the battlefield. Another central aspect of this conception, thirdly, consists in a clear-cut distinction between just and unjust sides of the conflict, that is, unjust warriors and just defendants of the international order. Warriors in defence of the international order, finally, emerge as just victors of the military confrontation at the end of the day. Just war theorists might argue that there is no point in offering normative guidance to unjust combatants as (a) they do not care about justice at all and (b) ultimately ‘it is hard to see how an unjust war can end justly’. ⁶⁸

This dualist image, nonetheless, is highly debatable. One objection is that this emphasis on the rights and responsibilities of victors provides an unrealistic approach to moral questions. Contemporary wars rarely take place between states or well-defined sides and, even if that is the case, they do not frequently involve an ideal clash of just and unjust combatants. Most contemporary armed conflicts, additionally, do not conclude with a decisive victory on the battlefield. Another objection is that, as Danilo Zolo observes, such an image paves the way for a double standard ‘in which a justice “made to measure” for the major world powers operates alongside a separate justice for the defeated and downtrodden’. ⁶⁹ The term ‘victor’s justice’, for that reason, has acquired a pejorative connotation as a unilateral account of justice. These are all relevant objections, but I shall focus hereafter on a slightly different line of criticism associated with the reliance of this conception of justice after war upon the hierarchical classification of races and cultures in the supposedly universal trajectory of civilisation and human progress.

Post-War Justice as the Ethics of Conquerors

Insofar as premised upon a dualist image of post-war questions, I shall explain in this section the colonial relations emanated from justice after war as the ethics of victors. In his monograph, Cian O’Driscoll observes that just war theorists in the last decades have paid little attention to the concept of victory, but at the same time this concept has had more currency in recent debates on post-war justice. ⁷⁰ While military victories remind us that just wars are perhaps more a matter of might than right, the defeat of one of the sides seems to be one of the basic preconditions of jus post bellum. This allegedly offers a methodological advantage, namely, it facilitates a more realistic theorisation of moral rights and responsibilities in the aftermaths of war. ⁷¹ Just war theory, in this sense, primarily speaks to those with the military and material power to wage war, defeat their enemies and occupy foreign territories in a situation of institutional collapse. ⁷²

Simultaneously, the emphasis on the rights and responsibilities of just victors obscures other questions: what happens if there is no decisive victory on the battlefield? ⁷³ Is it always possible to draw a clear-cut line between victors on the side of justice and their unlawful enemies? This conception of post-war justice turns out to be one area that requires a more exhaustive and critical examination. Its theorisation, as we saw above, remains cemented on the dualist image of ‘just victors’ and ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’. Such a dualist image reproduces some of the presuppositions that characterised colonial debates on the rights and responsibilities of European powers and, more recently, imperial powers like the United States. This is the result of a Manichean world, to use Franz Fanon’s terminology, in the sense that some combatants epitomise an absolute evil or the negation of ethics, whereas others symbolise morality and human progress. ⁷⁴ In this world, ‘just victors’ represent a morally superior position in defence of justice while ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’, by contrast, represent an inferior position of unlawfulness and moral degeneration.

There exists, in other words, a theoretical continuity between the ethics of conquerors and the rights and responsibilities of victors. The former is grounded in explicit classifications of peoples and cultures based upon ideas of civilisation and human progress, the latter is shaped by implicit classifications of peoples and cultures based upon colonial imaginaries. Some just war thinkers are, nonetheless, sceptical about the theoretical continuities between classic and more recent iterations of post-war justice. ⁷⁵ O’Driscoll epitomises this interpretation of jus post bellum. According to O’Driscoll, modern just war theorists, who might be expected to focus on the rights of conquest, ‘address their inquiries to the responsibilities rather than the entitlements that follow from victory in war’. ⁷⁶ What reveals the theoretical continuities between the ethics of victors and the ethics of conquerors is rather the type of colonial relations associated with post-war dualisms.

Such imaginaries ultimately spring from an implicit dualism between those ‘more advanced’ and those ‘lagging behind’ in the supposedly universal line of civilisation and progress. This does not mean an explicit theorisation of the subjugation of ‘new’ and ‘exotic’ territories inhabited by ‘barbarous’ or ‘uncivilised’ peoples, but the premise of a theoretical relationship between might and right when there has been a historical record of power relations of control and domination based upon cultural and racial hierarchies with present-day reverberations. The presupposition in this strand of just war theory is that there exists a militarily and, in principle, morally superior power that defeats its enemies on the battlefield and then asks what its rights and responsibilities are. ⁷⁷ This is ultimately because victory (and conquest) on the battlefield enables military powers to impose and implement their conceptions of post-war justice on the vanquished. Military victories, however, have little to do with the moral standing of combatants. ⁷⁸ The origins of this colonial association between might and right can be found in the ethics of conquerors. ⁷⁹

While this association and its obfuscation of relevant questions are important consequences of the dualism upon which post-war justice rests, I want to focus here on the type of power relations emanating from this emphasis on the rights and responsibilities of just victors. Post-war justice, in this conception, consists of ‘just victors’ acting on their defeated and unjust enemies. This conception theorises justice after war in terms of eminently hierarchical relations of power, later conflated with moral hierarchies, between former antagonists on the battlefield: on the one hand, the active side of just victors and, on the other, the passive side of the unjust combatants. Hutchings, thus, categorises the types of colonial relationships in just war theory as punitive, protective and educative:

protective, for those that are unable to act for themselves; educative, for those that are ignorant or mistaken about what is the right thing to do; punitive, for those characters that know the right but refuse to act on it ⁸⁰

As a result of its historical roots in colonial imaginaries, as I shall explain below, the emphasis on the rights and responsibilities of victors in the theorisation of post-war justice tends to confine the normative debate to these relations of punishment, protection and education. ⁸¹ No political compromise, mediation or dialogue between former combatants, at least in principle, is required once we build upon the assumption that one side holds beforehand the monopoly over the definition of the valid needs, expectations and perspectives of what justice demands after war.

Post-War Occupation and Reconstruction as Sites of Decolonial Analysis

Once established that the emphasis on the rights and responsibilities of victors builds upon dualist imaginaries inherited from the ethics of conquerors, I shall illustrate here the repercussions of this approach through the theorisation of post-war occupations and reconstructions. After all, no other field captures the archetypical imaginaries of post-war justice in better terms than the engagement of colonial powers with defeated territories in a situation of institutional collapse. Frequent illustrations in the post-war literature are state-building operations in Iraq and Afghanistan after the US-led invasions. These state-building operations coincided with a renewed interest in just war theory and, more particularly, the analysis of post-war categories in the last decades. The responsibility to rebuild usually aims at the establishment of a better set of social and political institutions that do not constitute a threat to international peace or the basic rights of the citizens of defeated regimes.

The post-war occupation and reconstruction of defeated regimes, the argument goes, resembles the rehabilitation of individuals literally unable to take care of themselves or are potentially dangerous to others. The responsibility to rebuild, as Larry May notes, alludes to a ‘paradoxical situation of heteronomous aid being necessary for autonomous action’. ⁸² In May’s account, this responsibility finds its historical roots in Vattel’s and Grotius’ conceptions of the common duties of nations in relation to the happiness and welfare of other peoples. ⁸³ What is missing in this genealogical reconstruction is the background of European colonialism and imperialism at the time these ideas were developed and deployed. This geopolitical context turns out to be one of violent domination and control, supposedly for the sake of dominated territories and peoples, but ultimately grounded in a hierarchical classification of peoples and cultures. ⁸⁴

The altruistic aim of post-war occupations and reconstructions, in theory, is no other than helping foreign regimes and peoples in a situation of institutional collapse or moral degradation. Orend even uses the term ‘political therapy’, continuing with the rehabilitation metaphor, when talking about the reconstruction of political institutions in occupied territories as a benevolent and humanitarian enterprise that ‘requires the strength to see it through’. ⁸⁵ Despite its influence on modern conceptions of justice after war, the occupation of foreign territories and the replacement of political institutions happen to be one of the most debated areas of jus war theory simply because, in Walzer’s terms, ‘it is at this point that just wars come nearest to crusades’. ⁸⁶ This is by no means a widely shared concern. Orend, contra Walzer, considers this as a too cautious approach that confines the therapeutic role of ‘just victors’ to exceptional cases. Orend’s more influential conception of jus post bellum, by contrast, leads in that sense to a more permissive account of a ‘political therapy’, depending on necessity and proportionality calculations. ⁸⁷

This contrast foregrounds a distinction between minimalist and maximalist conceptions of post-war justice. The former tends to restrict justice after war to the vindication of the rights unjustly disrupted, whereas the latter tends to hold a more expansive idea of the rights and responsibilities of victors. ⁸⁸ Minimalist accounts are often associated with a conception of post-war justice as the restoration of the pre-war situation. The rationale behind such accounts is the risk that victors might abuse their position of power once the armed conflict is over. Maximalist accounts, by contrast, tend to advance more ambitious, but contested, conceptions of post-war justice aligned with enterprises of regime change, infrastructure reparations, human rights policies, as well as socio-economic development and even compensations for environmental harms. ⁸⁹

It is based upon this distinction that, on the one hand, Walzer represents a minimalist conception of post-war justice and, on the other, Orend’s work tends to be more associated with a maximalist conception of the rights and responsibilities of victors. ⁹⁰ Given his emphasis on self-determination, Walzer theorises the rights and responsibilities of victors in minimalist terms even if exceptionally admitting a more active role of victors in the achievement of a better peace. Orend’s maximalist conception of post-war justice, by contrast, finds its historical roots in Kantian ideals of cosmopolitanism and, more particularly, the promotion of universal values like human rights and liberal-democratic principles. The main problem with maximalist accounts, as Bellamy has noted, turns out to be their reliance upon a ‘global consensus on the nature of good governance, human rights and economic reconstruction’. ⁹¹ Maximalist accounts in this sense tend to be more inspired by enterprises orientated to the imposition of the political regimes and socio-economic institutions of colonial or imperial powers as though universally agreed.

Although minimalist accounts tend to be less prone to the reproduction of colonial relations, the theorisation of post-war occupations and reconstructions, more particularly, in maximalist terms often encapsulates the historical continuities of just war theory and the types of colonial relations associated with this intellectual tradition:

• (1) The punitive response to violations of the international order or the basic rights of citizens in the form of military invasions.

• (2) The protective occupation of foreign territories otherwise chaotic due to the circumstances of institutional collapse or moral degradation.

• (3) The educative guidance on the reconstruction of post-war regimes in terms of liberal-democratic ideals.

These relations of punishment, protection and education take the form of hierarchical interactions between a morally and militarily superior regime and its morally and militarily inferior antagonists. Such interactions, to use Bellamy’s classification, operate at the level of two sets of post-war relations: first, the relations between just victors and occupied peoples and, second, the relations between just victors and the authorities of occupied territories. ⁹² In both cases, however, post-war theorists tend to moralise the dominant position of just victors as acting on their defeated enemies.

Towards a Decolonial Reformulation of Post-War Justice

Despite its clear predisposition to reproduce colonial relations, this connection between maximalist conceptions of post-war justice and colonial assumptions is contingent. Maximalist conceptions, on the one hand, tend to presuppose an ideal of socio-political life. This ideal is often translated into the liberal-democratic institutions and principles eminently championed by former colonial powers and understood as the allegedly universal benchmark of justice after war. It is in this regard that post-war maximalism reproduces colonial hierarchies at the international level. On the other hand, maximalist accounts of post-war justice can be also interpreted as providing a more comprehensive account of political violence, making thereby room for relational debates on historical and structural injustices, political reconciliation and democratic engagement. Although the first interpretation revolves around punitive, educative and protective imaginaries premised upon a hierarchical classification of peoples and cultures, the second rests upon the possibility of historically and politically informed relations of dialogue, mediation and compromise.

It is from this vantage point that a decolonial reformulation can also inform maximalist conceptions of post-war justice. The decolonial analysis, in other words, transcends debates between maximalist and minimalist accounts in the sense that what matters is the dialogical method through which different conceptions of post-war justice are achieved in the first place. The post-war reconstruction of territories in a situation of institutional collapse, to give an example, could be renegotiated and agreed upon through political mechanisms of intercultural dialogue, mediation and compromise that prioritise the peoples and cultures of affected territories. Although the conception of post-war justice as the rights and responsibilities of victors is grounded in colonial imaginaries about the moral, cultural and political superiority of victors, the decolonial contestation of such imaginaries foregrounds the cultivation of a political ethos of dialogue and negotiation as the cornerstone of any legitimate conception of justice after war.

As such, the decolonial foundations of a just peace could be primarily theorised as the dismantlement of colonial assumptions about racial and cultural hierarchies in just war theory. This can be translated into historically and politically informed accounts that take into consideration the broader context of multiple forms of colonial violence and their undeniable reverberations on the analysis of post-war contexts. The political violence in need of post-war reparations and justice, in other words, concerns not only the visible harms caused by military activities but also the more sophisticated patterns of control and domination inherited from colonial structures. The starting point of a just peace in this context must be no other than a dialogical predisposition that is conscious of the historical misconstruction of certain peoples, their cultural practices, epistemological frameworks and ways of being as inferior from the perspective of colonial powers.

The interrogation of these colonial assumptions, in fact, has already inspired a decolonial turn within the field of peace studies as an attempt to move away from overly liberal conceptions of peacebuilding rooted in Eurocentric norms and practices. In contrast to such conceptions, this decolonial turn has envisioned the practice of peacebuilding in terms of self-determination and intercultural dialogue premised upon the localised experiences, alternative knowledges and concrete needs of historically marginalised communities and their cultures. ⁹³ This turn has underpinned, for instance, the recognition of rivers and ancestral territories as victims of war-related harms or the resort to community-building ceremonies of collective reparation emanated from colonised peoples and territories. It is in this sense that a decolonial reorientation can develop a more comprehensive and receptive theorisation of post-war justice by transcending colonial assumptions grounded in the conflation of might and right in the wake of war. In contrast to the unilateral imposition of moral ideals derived from a false universalism, the decolonial reformulation is rather characterised by political relations of dialogue, mediation and compromise as meaningfully informed by the resurgence of historically colonised peoples and the recuperation of their contributions to the collective enterprise of justice and post-war reparation.

Conclusion

I have explored in this article the colonial origins of the emphasis on the rights and responsibilities of just victors in the aftermaths of war. My argument was that, by building upon an image of ‘just victors’ confronted on the battlefield by ‘unjust aggressors’ or ‘inherently aggressive and murderous regimes’, just war theorists tend to come up with a limited conception of post-war justice grounded in colonial relations of punishment, protection and education derived from the ethics of conquerors. Post-war operations of occupation and reconstruction as traditionally envisioned in just war theory epitomise these colonial relations. Such theoretical continuities and discontinuities between the ethics of conquerors and the ethics of victors can be explained by coloniality, understood as the racial and cultural hierarchies inherited from colonial structures.

This intervention has explained the theoretical continuities between the ethics of conquerors and the ethics of victors associated with punitive, protective and educative relations, foregrounding thereby a decolonial reorientation of post-war imaginaries as better grounded in political relations of dialogue, mediation and compromise. The role of post-war and IR theorists is not only to advance normative questions, but also to interrogate the terms on which these questions are formulated and their influence on setting the limits on our theoretical imagination. Whether global institutions understand mechanisms of post-war justice, such as criminal tribunals and reconstruction enterprises, as imposed by military victors or as politically negotiated with affected territories and peoples depends upon the rejection of the colonial assumptions that still inform just war theory. The political stakes of this intervention are no other than the interrogation of those global methods of domination and control historically concealed under the languages of morality and justice.