05 May Jus Post Bellum Symposium: Jus Post Bellum–The Value of an Interpretive Conception
[James Gallen is a Lecturer in the School of Law and Government at Dublin City University.]
Jus Post Bellum: Mapping the Normative Foundations provides an important assessment of the potential of international law to shape post-conflict societies in a space of competing and fragmented debates. I agree with Eric de Brabandere’s contribution to this symposium that if jus post bellum is to add real value, it must demonstrate an advantage beyond existing approaches in areas such as peace-building or transitional justice. However, I am more optimistic that distinctive value can be added by an interpretive conception of jus post bellum.
The need for an interpretive approach to the concept arises from the considerable diversity of post-conflict societies, the range of international actors involved and the numerous areas of existing international law and policy relevant to post-conflict issues. These factors, among others addressed in this book, render questions of justice after conflict highly complex, but it remains glib not to query whether that complexity can be clarified and conquered.
I argue for the use of Dworkin’s concept of integrity to construct a coherent interpretation of this complexity in a jus post bellum framework. To pursue integrity analytically, Dworkin distinguishes between “fit” and “justification.” The former is concerned with providing an interpretation that matches the existing practice and body of law. The latter seeks to identify the best justification for this practice. The task of jus post bellum as integrity is to therefore offer a description of the existing international law, policy, and theory as applied to specific societies and to coherently justify this description by reference to its value goals. To guide this interpretation, I argue the principles of stewardship, proportionality and accountability are necessary but insufficient conditions for a coherent account of actions taken in the aftermath of conflict.
My intention for jus post bellum is to encourage states and international organisations to justify incoherence between their stated commitments in post-conflict societies and the absence of a coherent and consistent approach to those commitments. This intention seeks to address Roxana Vatanparast’s concerns in this volume that jus post bellum could be appropriated by neo-colonial interests and damage the legitimacy of its values. For instance, an interpretation that pursues integrity could challenge the present, largely fragmented, approach to accountability in international law. The United Nations seeks to promote accountability for gross violations of human rights after armed conflict, yet also is subject to considerable criticism of impunity for the sexual misconduct of its own personnel and the allegations that its peacekeepers brought cholera to Haiti. An approach predicated on integrity requires this contradiction to be justified or reconciled.
But so what? Eric de Brabandere questions the value of adding this layer of jus post bellum to the range of rules and norms that already operate in a post conflict arena. Eric rightly identifies that each of these principles can be found in general public international law. This is especially so for proportionality, which finds widespread expression in international courts and tribunals.
The added value of an interpretive approach to jus post bellum depends on one’s approach to interpretation in general. Interpretation necessarily involves normative non-legal, interpretive values that an interpreter brings to the project. In the absence of any further interpretive principle, those who apply substantive principles of jus post bellum may accept the existing pattern of their application including inconsistencies or contradictions. Moreover, some theories relevant to post-conflict environments, such as Ruti Teitel on transitional justice argue that a trade-off of values is inevitable. Larry May’s work suggests that he prefers a view of value that permits the existence of incommensurable moral goods.
A distinct case therefore needs to be made that an approach predicated on the unity of value and the desirability of integrity in interpretation should be preferred. Three reasons present themselves. First, post-conflict processes are more legitimate if forming part of a coherent whole. The aftermath of conflict presents several social conditions, including an absence of the rule of law, civic trust or social recognition of human dignity, which are shared pre-conditions in areas relevant to jus post bellum such as peace-building, transitional justice, security sector reform. Such areas face enormous and challenging tasks because of these conditions and struggle to offer an ideal conception of justice in that context. In these non-ideal circumstances, Pablo de Greiff has argued measures that are weak in relation to the immensity of their task are more likely to be interpreted as justice initiatives if they help to ground a reasonable perception that their coordinated implementation is a multi-pronged effort to restore or establish anew the force of fundamental norms. Jus post bellum as integrity can recognise these mutually dependent conditions and constitutes a legitimate and coherent non-ideal conception of justice in the aftermath of war and conflict.
The second reason relates to the effectiveness of a conception of justice or peace after conflict. Eric de Brabandere has argued jus post bellum literature seeks to enhance the effectiveness of establishing of a just and enduring peace through international law. The existing approach remains ineffective, with Paul Collier noting more than 50% of armed conflicts reverting to violence within a 10 year period. However, persisting with the present approach to principles such as proportionality, trusteeship and accountability, will not without more address any patterns of their unprincipled inconsistent application to improve the empirical enhancement of a just peace. Prosecuting more war criminals after a conflict would not address the inconsistent application of a principle of accountability to peacekeepers or UN staff; nor does the greater use of proportionality in international courts and tribunals address its use to evaluate the moral and political choices made by a society emerging from conflict in non-judicial settings. To the extent that existing international law represents and inconsistent and incommensurable pattern of trade-offs, it disavows the inter-connected nature of the social norms and conditions which are the starting point for areas relevant to jus post bellum. Finally, interpretation is presently feasible. A further Geneva Convention for jus post bellum is a worthwhile long term goal, but at present a focus on clarifying interpretive practices of officials and civil society actors involved in a post-conflict space is a more pressing priority. An approach based on integrity is therefore a particular form of interpretation, that has normative and empirical dimensions.
Jus post bellum is presently the matter of academic discourse, but could constitute moral or policy guidance for international actors involved in the aftermath of conflict. The volume under discussion at this symposium constitutes an element of that guidance. In future, an interpretive approach may provide the basis of a genuinely inter-disciplinary practice of jus post bellum, which recognises that a more legitimate and effective account of justice after war may be given by embracing the interconnected and interdependent nature of the social conditions after conflict.