Book Symposium: Jus Post Bellum–Mapping the Normative Foundations

by Jens Iverson

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Researcher for the ‘Jus Post Bellum’ project at the Universiteit Leiden and an international justice consultant. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.]

As editors of Jus Post Bellum: Mapping the Normative Foundations, we are delighted and honored to be able to present the ongoing jus post bellum debate in this Opinio Juris symposium. The book was written as part of a four-year research project on jus post bellum. The concept is steadily gaining ground in emerging scholarship, and we hope the fantastic contributions to this symposium will push that scholarship even further. We are grateful to the contributors to the symposium, to those who post responses, and to the readers.

The basic idea of jus post bellum emerged in classical writings (e.g., Alberico GentiliFrancisco SuarezImmanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural framework to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ‘post-war-justice’ (Michael WalzerBrian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation,transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.

In order to study the concept, we broke it down into its constituent parts: juspost, and bellum. Authors in the book—many of whom have contributed to this symposium—grappled with questions as diverse as the normative and moral meanings of justice, the intricacies of time and transition; and the very conception of armed conflict. Our main conclusion from the book is that it is helpful to think about jus post bellum in three different ways.

First, Jus post bellum may be said to form a body of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. There may be promise in strengthening informal mechanisms and flexible principles.

A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.

Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.

Like many legal concepts, jus post bellum is not without contestation. But this is not necessarily a weakness. We conclude the book with a SWOT analysis: Strengths, Weaknesses, Opportunities, and Threats. We argue that some of merit of the concept lies in dialogue and contest with other concepts, such as Transitional Justice, the law of peace or the Responsibility to Protect.

We have tried to capture the essence of that dialogue in this symposium. We are delighted to have several authors from the book, as well as additional distinguished guests, join us in the on-going debate about the contours and merit of jus post bellum. Over the course of the next several days, they will engage with issues including: on Monday, useful definitions for jus post bellum; on Tuesday, its relationship to other related concepts; on Wednesday, peace agreements, constitutions, and environmental concerns; on Thursday, sovereignty and multilateralism; and on Friday, post-conflict responsibility. We hope that your find their contributions, and the discussion, as fascinating and thought provoking as we have.

http://opiniojuris.org/2014/05/05/book-symposium-jus-post-bellum-mapping-normative-foundations/

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