Jus Post Bellum Symposium: Omission Liability and Jus Post Bellum

[Jens David Ohlin is a Professor of Law at Cornell Law School; he blogs at LieberCode.]

In the following post, I want to explore why jus post bellum is controversial in some quarters, and why its legal content has not been more quickly or more wholeheartedly embraced by our legal system.  Of course, the term jus post bellum is an expansive one, covering different legal and philosophical doctrines.  Drawing my inspiration from the contributions in the new book edited by Carsten Stahn, Jennifer Easterday, and Jens Iverson (Jus Post Bellum: Mapping the Normative Foundations), I will take the core elements from some popular jus post bellum arguments, and show that our intuitions about omission liability constitute a major obstacle to a more thorough adoption of jus post bellum principles.

As Eric De Brabandere explains in his highly critical chapter, the legal responsibilities associated with belligerent occupation are triggered by a purely factual element: the existence of an occupation.  At least in law, the lawfulness or justness of the original invasion has no bearing on the responsibilities attributed to an occupying power. Illegal invaders and legal invaders alike are subject to the same responsibility.  Although an asymmetry of responsibilities based on the justness of the invasion (jus ad bellum) might be philosophically attractive in the context of Just War Theory, it would be problematic from the perspective of international law which regards jus in bello and occupation responsibilities as being wholly disconnected from jus ad bellum concerns.

Furthermore, the law of occupation only imposes its obligations if the power actually engages in an occupation.  If the invading force immediately leaves, and does not occupy the territory, then the machinery of the law of occupation is never brought to bear on the situation.  Under this body of law, there is no affirmative duty to occupy a territory — only conditional obligations on belligerent powers that decide to occupy a territory.

Here is where jus post bellum can do its work: it can confer a responsibility on belligerent forces to occupy, under a theory that there is a duty to fix the civil infrastructure destroyed by war, re-constitute a commitment to the Rule of Law, and restore human rights.  For some philosophers, an attacking force’s unjust invasion would heighten those responsibilities.  Either way, the idea is that the belligerent force might be morally or legally responsible for its decision not to occupy the country and deploy the necessary resources to restore it.  The belligerent force would be liable for its omission: failing to fix the post-conflict society.

The reason this is controversial, and constitutes an argument de lege ferenda, is because the law is generally hesitant about imposing liability for omissions.  Generally speaking, omissions only generate liability if there is a pre-existing duty to act, and the law is rather stingy about imposing affirmative obligations.  Of course, different legal systems and legal cultures have varying degrees of tolerance for omission liability.  The standard line, somewhat exaggerated, is that common law systems rarely impose an affirmative duty to act, while civil law jurisdictions are much more comfortable imposing such duties, e.g. a duty to rescue.  Although this summary is simplistic and reductive, there is a grain of truth to it.

International law is also somewhat hesitant about imposing affirmative obligations from which an omission could trigger obligations, though I think civil law trained international lawyers are generally speaking more comfortable with the idea than common law trained international lawyers.  Even the split between the ICCPR and ICESCR in human rights law can be viewed through this lens.  The ICCPR imposes negative duties to refrain from certain conduct, while the ICESCR imposes positive duties to act, although even in that case there is a plausible account of why the government has an affirmative duty to care for its own citizens – from which an omission would trigger some liability under the law.

In the field of inter-state regulation, however, states have few positive duties towards other states that could trigger omission liability.  The Responsibility to Protect (RTP) Doctrine, examined in Carsten Stahn’s chapter, is one such example.  Under RTP, the world community has a responsibility to protect foreign civilians from the horrors of war, thus generating a corresponding right of intervention.  The basic structure of the doctrine is the old philosophical adage: ought implies can.   Since states ought to protect civilians from atrocity, they have the right to do so (up to and including crossing international borders if necessary under some versions of the doctrine).

The structure of the RTP doctrine is the same; it imposes a soft form of moral liability for states’ failure to act — their omissions.  At least it does if you take seriously the idea that there is a responsibility to protect.  If a state violates this responsibility, then it is responsible for its omission.  This is precisely why RTP is also controversial.  It imposes affirmative obligations that can generate omission liability – obligations that international law has generally avoided codifying.

An underlying theme in this entire debate is the split between legal and philosophical discourses.  While lawyers are usually hesitant about imposing affirmative duties giving rise to omission liability, philosophers are far more comfortable with the idea. In particular, they are comfortable positing affirmative duties to moral agents who are capable of alleviating a great harm to others without enduring a significant burden.  In the alternative, some philosophers are comfortable with imposing a negative duty on agents to alleviate the harms associated with their actions.

Gregory Fox, in his chapter on the Unilateral/Multilateral Divide, gestures in this direction when he cites the environmental law principle of Common but Differentiated Obligations (CDO), which impose higher obligations on developed states under the theory that they have a responsibility, sounding in corrective justice, to remediate the environmental degradation caused by their historical actions.  However, Fox then goes on to note that “this claim has little application to jus post bellum; the history of the actors involved has little bearing on how they should conduct themselves in post-conflict states.”  This is right insofar as international law is hesitant to link jus post bellum obligations with jus ad bellum violations, but I do think international lawyers are more comfortable imposing omission liability when it violates a pre-existing duty triggered by a state’s past conduct (use of force whether lawful or not).

It is this last idea that contains the most promising element of the jus post bellum framework.  For states that engage in military action, they might have a negative duty to mitigate the harm associated with their military action.  Of course, De Brabandere is worried about linking these obligations to jus ad bellum considerations.  Some jus post bellum obligations might be imposed on states that engage in military force in violation of jus ad bellum.  But rather than view this as collapsing the distinction between jus ad bellum and jus in bello, proponents of this approach view it as a sanction associated with the jus ad bellum violation; states that violate the UN Charter are required to mitigate the consequences of that illegality.  Although this is conceptually sound, I agree with De Brabandere that international law should probably avoid this approach. Making jus post bellum requirements symmetrical for just and unjust attackers alike will be easier to enforce in international law and will ultimately make jus post bellum a more successful and influential legal framework.