1. While Schuck was the first to explicitly address jus post bellum in 1994, attention grew particularly in the last ten years. See, e.g., Michael J Schuck, “When the Shooting Stops: Missing Elements in Just War Theory” (1994) 111:30 Christian Century 983; Louis V Iasiello, “Jus Post Bellum: The moral responsibilities of victors in war” (2004) 57:3-4 Naval War College Review 33; Richard DiMeglio, “The Evolution of the Just War Tradition: Defining Jus Post Bellum” (2005) 186 Mil L Rev 116; Orend, Brian, “Jus Post Bellum: A Just War Theory Perspective” in Stahn, Carsten & Kleffner, Jann, eds, Jus Post Bellum, Towards a Law of Transition From Conflict to Peace (The Hague: TMC Asser Press, 2008) at 31.Google Scholar

2. See, e.g., Iasiello, supra note 1 at 39; Alex Bellamy, “The responsibilities of victory: Jus Post Bellum and the Just War” (2008) 34:4 Review of International Studies 601 at 601; Orend, supra note 1 at 36.

3. Not everyone however welcomes jus post bellum. There are few authors who criticize this new branch of just war theory. Alex Bellamy, e.g., argues that we should be careful to insist that jus post bellum has become a third branch of just war theory, since its incorporation is by no means unproblematic. “As yet unresolved questions about its connection to the other just war criteria, their applicability in different types of war, their impact upon broader judgments about legitimacy, and relationship with the indeterminacy of the jus ad bellum criteria, suggest that it is premature to insist that jus post bellum has become a third component of the Just War tradition.” Bellamy, supra note 2 at 622. Seth Lazar is also skeptical and argues that we do not need jus post bellum as part of just war theory, because the issues it regulates are better perceived in the broader ethics of peace building. Jus post bellum needs to look forward to the task of peace building and is therefore grounded in a broader ethics of peace building instead of flowing from just war theory. See Seth Lazar, “Endings and Aftermath in the Ethics of War” (2010) 13 CSSJ Working Paper, online: http://www.politics.ox.ac.uk/materials/centres/social-justice/working-papers/SJ016_Lazar_Endings&Aftermath_War.pdf.

4. E.g., Mark Evans, “Moral Responsibilities and the Conflicting Demands of Jus Post Bellum” (2009) 23:2 Ethics & International Affairs 147 at 149.

5. Mark Evans, “‘Just Peace’ An Elusive Ideal” in Eric Patterson, ed, Ethics Beyond War’s End (Washington, DC: Georgetown University Press, 2012) 197 at 208; Allman, Mark & Winright, Tobias, After the Smoke Clears: The Just War Tradition and Post War Justice (Maryknoll: Orbis Books, 2010) at 160–63.Google Scholar

6. Evans, supra note 5 at 207-08; Allman & Winright, supra note 5 at 161; Brian Orend, “Justice after War” (2002) 16:1 Ethics & International Affairs 43 at 52.

7. Other tasks of jus post bellum that are often mentioned are compensation, reparations and reconciliation.

8. Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed (New York: Basic Books, 2000) at 121.Google Scholar

9. Walzer, Michael, “The Aftermath of War. Reflections on Jus Post Bellum” in Patterson, Eric, ed, Ethics Beyond War’s End (Washington, DC: Georgetown University Press, 2012) 35 at 36.Google Scholar

10. See further: Lonneke Peperkamp, “Jus Post Bellum: A Case of Minimalism versus Maximalism?” (2014) 21:3 Ethical Perspectives 255.

11. See also: James Pattison, “Jus Post Bellum and the Responsibility to Rebuild” (2015) 45:3 British Journal of Political Science 635 at 636; Alexandra Gheciu & Jennifer Welsh, “The Imperative to Rebuild: Assessing the Normative Case for Postconflict Reconstruction” (2009) 23:2 Ethics & International Affairs 121 at 137.

12. Pattison, supra note 11 at 636.

13. Walzer, supra note 9 at 40.

14. Ibid at 41.

15. Orend, supra note 1 at 49.

16. Walzer, supra note 9 at 43, 44.

17. Pattison, supra note 11 at 638–41.

18. The potential lack of political will and material capacity of just victors is also mentioned by Alex Bellamy. See Bellamy, supra note 2 at 623; George Clifford similarly argues: “Nations that win a war may not have the resources, political will, or acceptability required to build a just peace unilaterally.” George Clifford, “Jus post bellum: Foundational principles and a proposed model” (2012) 11:1 Journal of Military Ethics 42 at 44; Gheciu and Welsh further explain why belligerents might not be the most appropriate actors: they generally have high stakes; can be biased; and might not be in the best position to act. See Gheciu & Welsh, supra note 11 at 134, 136.

19. Particularly with regard to just interventions. Lazar, Seth, “Scepticism about Jus Post Bellum” in May, Larry & Forcehimes, Andrew, eds, Morality, Jus Post Bellum, and International Law (Cambridge: Cambridge University Press, 2012) 204 at 216–17.Google Scholar

20. Lazar argues that in case of a humanitarian intervention, the duty to reconstruct is universal, since the original intervention was a universal duty and everyone should help one in need. Ibid at 216.

21. World Summit Outcome Document 2005, online: http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf.

22. Stahn, Carsten, “The Future of Jus Post Bellum” in Stahn, Carsten & Kleffner, Jann, eds, Jus Post Bellum, Towards a Law of Transition From Conflict to Peace (The Hague: TMC Asser Press, 2008) 231 at 323–24.Google Scholar In the words of Clifford: “In a world increasingly tied by global interests and linkages, responsibilities for achieving progress toward peace are international and entail situationally determined elements and commitments.” Clifford, supra note 18 at 44.

23. Larry May argues that the burdens of jus post bellum should be shared between belligerents. They have to work together to reestablish the rule of law and secure that just and lasting peace. The condition of proportionality is helpful in distributing responsibility between former belligerents. May, Larry, After War Ends: A Philosophical Perspective (Cambridge: Cambridge University Press, 2012).CrossRefGoogle Scholar

24. Gheciu & Welsh, supra note 11 at 121-23.

25. Ibid at 143.

26. Pattison, supra note 11 at 635.

27. Ibid at 658.

28. Pattison raises justified concerns against the ‘belligerents rebuild thesis’. However, his main argument against this thesis is its supposed relation to the ‘dependence approach’, according to which the justness of the war is dependent on jus post bellum. And as Pattison rightly rejects the latter approach, he rejects the ‘belligerents rebuild thesis’ as well. I am not convinced by this line of argument, particularly because of that supposed relation. Aside from Gary Bass, most theorists defending the ‘belligerents rebuild thesis’ do not rely on the ‘dependence approach’ but use other arguments. His argumentation therefore not invalidates the claim that former belligerents are the prime duty bearers after war.

29. I am aware that there are major differences among theorist about what is part of reconstruction and what the appropriate scope of reconstruction must be. In this article however, I want to leave this matter aside and delve into the issue of responsibility instead.

30. Miller, David, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007) at 81.CrossRefGoogle Scholar Miller’s study on national responsibility is well constructed and complex, and unfortunately I can only discuss parts of his argument in this article.

31. Simon Caney, Justice Beyond Borders (Oxford: Oxford University Press, 2005).

32. Thomas Nagel, “The Problem of Global Justice” (2005) 33:2 Philosophy and Public Affairs 113. For an extensive discussion of the difference between duties of justice and duties of charity see: Allen Buchanan, “Justice and Charity” (1987) 97:3 Ethics 558; Miller positions himself in the global justice debate as ‘social liberalist’, following the terminology of Charles Beitz. This position is contrasted with cosmopolitan liberalism on the one hand and laissez-faire liberalism on the other. Miller, supra note 30 at 20–21.

33. Miller, supra note 30 at 15–16.

34. Ibid at 83–84.

35. At least in the ad bellum phase just war theory deals with collective responsibilities, but even violations of the in bello rules might point at collective responsibilities, when, e.g., the army does not provide sufficient training for its soldiers in Geneva rules or, worse, actively encourages brutalities.

36. Miller, supra note 30 at 81.

37. Ibid at 87.

38. Ibid at 87.

39. Ibid at 98.

40. David Miller, “Distributing Responsibilities” (2001) 9:4 Journal of Political Philosophy 453 at 469.

41. This sanction is not necessarily punishment but can entail blame as well. Miller, supra note 30 at 98–99.

42. There is an extensive and extremely interesting debate on collective responsibility. However, in this article I want to shed light on responsibility for jus post bellum, rather than fully defend the issue of collective responsibility as such. This is not to deny that there are other positions that are eloquently defended, focusing on individuals and individual responsibly, also for the issue of war (e.g., Cécile Fabre, Cosmopolitan War (Oxford: Oxford University Press, 2012). For Miller’s defense of national responsibility based on the ‘like-minded group model’ and the ‘cooperative practice model’ see Miller, supra note 30 at 111-34, for critique, e.g., Roland Pierik, “Collective responsibility and national responsibility” in Helder de Schutter & Ronald Tinnevelt, eds, Nationalism and Global Justice. David Miller and his critics (London: Routledge, 2011) 94, and for a defense against criticism David Miller, “Collective responsibility and global justice” (2012) 19:4 Ethical Perspectives 627 at 631-35. For the purpose of this article, I assume that there is something like collective responsibility, or that it is at least a useful fiction, and that as such, nations and states can be responsible actors.

43. According to Thom Brooks, we can widen Miller’s focus and extend remedial responsibilities to other groups with a shared identity such as religious groups. Thom Brooks, “Remedial responsibilities beyond nations” (2014) 10:2 Journal of Global Ethics 156 at 156, 166.

44. One might think in this context of the recent revisionist turn in just war theory, initiated by theorists such as Jeff McMahan, which is based on an individualist account of the theory as opposed to the traditional statist account. This challenges mainly the traditional account of jus in bello, as it argues that combatants are not morally equal, but that their individual moral standing depends on the justness of ‘their’ war. Space precludes me from elaborating further on this topic. See, e.g., McMahan, Jeff, Killing in War (Oxford: Oxford University Press, 2009);CrossRefGoogle Scholar Rodin, David, War and Self-Defense (Oxford: Oxford University Press, 2002);CrossRefGoogle Scholar Frowe, Helen, The Ethics of War and Peace: An Introduction (London: Routledge, 2011) at 29-49, 118–39.Google Scholar

45. Margaret Moore, “Global justice, climate change and Miller’s theory of responsibility” in Schutter & Tinnevelt, supra note 42 at 133.

46. David Miller, “National Responsibility and Global Justice” (2008) 11:4 Critical Review of International Social and Political Philosophy 383 at 386-87.

47. The definition of statehood in international law is described as follows: “The state as a person of international law should possess the following qualifications: a permanent population; a defined territory; government; and capacity to enter into relations with the other states.” Article 1 Convention on the Rights and Duties of States 1933 (Montevideo Convention, entered into force 26 December 1933), online: http://www.cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897.

48. Miller, supra note 46 at 390.

49. This has to do with Miller’s foundation for collective responsibility, which are both the ‘like-minded group model’ and the ‘cooperative practice model’. Together, they can serve as foundation for the responsibility of nations and nation states, however, the foundation of mere state responsibility would rely solely on the ‘cooperative practice model’ which Miller considers fragile. David Miller, “David Owen on global justice, national responsibility and transnational power: a reply” (2011) 37:4 Review of International Studies 2029 at 2030.

50. This might be somewhat different for the problem of global poverty. Miller argues that nations are often outcome responsible for global poverty, since “it is not states, but peoples, who deforest land or deplete fish stocks, for example.” Miller, supra note 42 at 643.

51. Ibid at 643.

52. Miller, supra note 49 at 2030.

53. Miller, supra note 42 at 644.

54. Miller, supra note 49 at 2029. Similarly, when Miller considers the difference between compatriots and citizens in the nation-state, he states that while “there is much to be said for making nation-states the primary bearers of global responsibilities, even here the fit between the group that is collectively responsible and the institution to which responsibility is assigned will be imperfect”. Miller, supra note 42 at 648.

55. Miller, supra note 30 at 98. See also: Miller, supra note 40 at 469.

56. Miller, supra note 30 at 83–84.

57. Ibid at 107.

58. Ibid at 100.

59. Article 2.4 United Nations Charter 1945 (entered into force 24 October 1945), online: http://www.un.org/en/charter-united-nations/.

60. Miller, supra note 30 at 100.

61. Pattison rightly points out that: “non-belligerents may have also been culpable for the war, such as those that finance the war and provide military equipment.” Pattison, supra note 11 at 639.

62. Miller, supra note 30 at 89.

63. See also Evans, supra note 4 at 153.

64. A metaphor often accredited to Secretary of State Colin Powell, who supposedly warned President George Bush that he would ‘own’ all Iraq’s problems after the invasion. See, e.g., Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2004). In reality, the retail chain of home furnishing stores Pottery Barn does not have such a rule. Additionally, it should be noted that contrary to Pattison’s reference to this motto, it seems not to refer to moral guilt for damage as basis for the obligation to put it right (Colin Powell did not think at that point that the US would be the unjust aggressor), but rather to outcome responsibility for certain damage. Pattison, supra note 11 at 637–39.

65. Assuming here that letting an aggressor annex the victim’s state is not a viable option.

66. Lazar, supra note 19 at 20. Mark Evans, “At War’s End. Time to Turn to Jus Post Bellum?” in Carsten Stahn, Jennifer Easterday & Jens Iverson, eds, Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014) 26 at 36; Pattison, supra note 11 at 638.

67. Although Miller rightly acknowledges that it can be difficult to separate pure causal responsibility from relationships of outcome and/or moral responsibility. Miller, supra note 30 at 102.

68. This progressive scale is an oversimplification, think, e.g., of the type of moral responsibility that results from an omission to act, which I will elaborate upon in the next section. Miller, supra note 40 at 456.

69. Miller, supra note 30 at 101.

70. Ibid at 101.

71. Gheciu & Welsh, supra note 11 at 124.

72. See further on the idea of comparative justice: Steven Lee, Ethics and War: An Introduction (Cambridge: Cambridge University Press, 2012) at 104-06.

73. See, e.g., Coady, CAJ, Morality and Political Violence (Cambridge: Cambridge University Press, 2008) at 90.Google Scholar

74. These two difficulties are equally valid for outcome and causal responsibility; the actors’ share in a certain outcome can be difficult to trace back or to determine: it is nearly impossible to accurately determine the exact degree of responsibility. See further, e.g., Pattison, supra note 11 at 638–41.

75. Gheciu & Welsh, supra note 11 at 134.

76. Ibid at 135.

77. Miller mentions, e.g., that it is possible that A played no causal role but nevertheless benefited from the process that led to P’s deprivation because “resources that would otherwise have gone to P have been allotted to A.” Miller, supra note 30 at 102–03.

78. E.g., Walzer, Michael, Arguing about War (New Haven: Yale University Press, 2004) 35 at 43, 44.Google Scholar

79. Gheciu & Welsh, supra note 11 at 129-31.

80. Which is why Helen Frowe argues that they should bear the burdens of reconstructing as well. “So, if an intervening state inflicts collateral harms in the course of a humanitarian war, we might think that the burden of making good those harms falls to those who are the beneficiaries of the intervention, and not the intervening state.” Frowe, supra note 44 at 213.

81. Gheciu & Welsh, supra note 11 at 130.

82. Ibid at 139-40.

83. Miller, supra note 30 at 130.

84. According to Pattison, this foundation trumps the other foundations for assigning the duty to reconstruct. This consideration is more important than the other factors, because they relate to less morally urgent concerns. Namely, the goal is to properly rebuild the war torn state and protect the populations basic rights. Pattison, supra note 11 at 656. He therewith disagrees with Miller, who claims there is no hierarchy between the discussed variables.

85. Miller, supra note 30 at 103.

86. Thom Brooks, “Rethinking remedial responsibilities” (2011) 4:3 Ethics & Global Politics 195 at 200.

87. Miller, supra note 30 at 107.

88. Miller, supra note 40 at 462.

89. Gheciu & Welsh, supra note 11 at 126.

90. Hart, HLA & Gardner, John, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 2008) at 211.CrossRefGoogle Scholar

91. Ibid at 212-13.

92. Miller, supra note 30 at 100.

93. Miller, supra note 40 at 456.

94. Of course the UN itself was in the end responsible for failing to provide the necessary political authorization, manpower and material for effective military action.

95. Although if we trace causality further back, we could argue that Belgium was causally responsible since they institutionalized the ethnic division between Hutu’s and Tutsi’s, which played a role in the animosity and subsequent aggression between the two groups.

96. Gheciu and Welsh argue that: “the European Union’s current responsibility to rebuild in the Balkans stems from a dual source: perceived special duties vis-à-vis fellow Europeans, and the additional responsibility incurred by recent negligence in fulfilling those duties.” Gheciu & Welsh, supra note 11 at 126.

97. George Bush declared “The goal in Iraq and Afghanistan is for there to be democratic and free countries who are allies in the war on terror. That’s the goal. (…) we will stay there to get the job done.” See George W Bush, Public Papers of the Presidents of the United States, Book 2, July 1 to September 30, 2004 at 1715.

98. See, e.g., http://news.sky.com/story/844653/obama-libya-mission-is-not-regime-change. A national security advisor further explained that “it’s the Libyan people who are going to make their determinations about the future.” See http://thehill.com/homenews/campaign/151191-white-house-suggests-regime-change-is-goal-of-libya-mission.

99. Orend, supra note 1 at 49.

100. Given that this actor also has the ‘right’ to rebuild, which is so when there is a just cause for rebuilding and the effort is likely to be effective. Pattison, supra note 11 at 652. Pattison further argues that the UN Security Council should generally carry out the rebuilding process after war, an argument of which I am rather skeptical since contemporary reality forces us to be modest in our expectations of existing global institutions. While the UN might be generally perceived as a legitimate actor in the eyes of the deprived nation, it is questionable whether it is indeed the most capable actor to carry out reconstruction. Surely, when the UN and the Peace Building Commission would work as envisioned, they are in a good position to at least oversee post war duties. Exploring this line of global institutional reform would require however more space than is available in this article. Pattison, supra note 11 at 656–59.

101. E.g., Evans, supra note 4 at 149.

102. Thom Brooks similarly argues that Miller should correct his connection theory of remedial responsibility. He argues that his system is better understood as a ‘two tiered procedure’ asking different questions: “The first tier would ask which nations possess capacity.” Thereafter, we should “select a nation or nations from this pool of nations capable of being remedially responsibly according to Miller’s conditions.” Consequently, “There is an algorithm after all.” Brooks, supra note 86 at 200-01.

103. See Miller, supra note 46 at 391.

104. Hart & Gardner, supra note 90 at 215.

105. Miller, supra note 30 at 87.

106. While this is the case in our example of the first Gulf War, it is surely not always easy to determine whether a self defense is indeed a legitimate self defense. Consider, e.g., preemptive or preventive self defenses: the distinction between a legitimate self defense, a defense before its time, and a war of aggression is not always easy to make.

107. It should be noted that this does not mean that Iraq cannot be held liable for financially compensating Kuwait. But this is a question that is separated from the question as to who is responsible for halting the deprivation and reconstructing the war torn area.

108. Walzer, supra note 9 at 40.

109. It seems to me that when a state is willing but not capable of post war reconstruction, it can nevertheless justly intervene to prevent or stop a humanitarian catastrophe. Alex Bellamy rightly argues that to claim otherwise “dramatically reduces the number of potential agents who might save strangers in urgent peril”. Therefore, humanitarian emergencies are an exception to obligations to build the peace afterwards, according to Bellamy. Bellamy, supra note 2 at 620-21. If this should be the case, the intervening state should prevent the creation of legitimate expectations by making statements about their limited aims, thereby limiting their role responsibility.

110. Alex Bellamy points to the danger inherent in requiring humanitarian interveners to bear the duty to reconstruct after the intervention: not every intervener has the means to fulfill that duty. Bellamy, supra note 2 at 620-21.

111. Ibid at 620–21.

112. Miller, supra note 30 at 98.

113. In other words: the ‘belligerents rebuild thesis’ is the first right answer, but is it by itself an incomplete answer to questions of responsibility for jus post bellum. See further also Pattison, supra note 11 at 641.

114. Orend, supra note 1 at 52.

115. Pattison, supra note 11 at 659.