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An international law

 Why would the justice of the war not justify the seeking of compensation or the punishing of the enemy after victory? It is not evident within the tradition of the just war that considerations of ‘jus ad bellum’, ‘jus in bello’ or ‘jus post bellum’ are valid independently. Why can the justice of the cause of the war not set aside the limitations of the jus in bello and justify the rec- tification of the wrong after the war? Kant clearly states that this is not permitted. Regarding the ‘jus in bello’, he stresses that no war between independent states can be a punitive one as it would presuppose ‘a rela- tion between a superior and a subject which is not the relationship that exists between states’. For the same reason, Kant condemns wars of exter- mination and subjugation. (MdSR, 347; Reiss, 168) In the context of the right applicable after war, Kant writes that the victor may set the condi- tions for the peace treaty but that it may not claim compensation for the costs of the war because that would imply that the vanquished state had fought an unjust war. Although the victor may ‘hold’ that this is the case and that his opponent has committed a wrong against him, he cannot make use of that argument for therewith he would declare the war to be a punitive one. In the state of nature, the concept of a punitive war is ’self-contradictory’. (MdSR, 348; Reiss, 168) Would Kant indeed have accepted the concept of a ‘just war’, this would not be so evident. In the context of criminal law Kant holds that crimes ought to be pun- ished categorically. In other words: although every state when engaging in war must think that it wages a just war because otherwise it would fight a ‘just enemy’, this is irrelevant with regard to the conduct of war and to its conclusion. For Kant, the rules of the ‘jus in bello’ have cate- gorical validity; they cannot be set aside in the name of some supreme emergency derived from the ‘jus ad bellum’.19 Nor does a ‘just war’ affect the outcome of the war. The ‘right’ of the victor to set the conditions of peace is based solely on power not on ’the pretended right which he pos- sesses over his opponent because of an alleged injury the latter has done him’. (MdSR, 349; Reiss, 169) The conclusion must be, I think, that for Kant the statement that a state has the right to war is an analytical judge- ment in the state of nature. He does not support the theory of the just war.