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How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5′s stranglehold over the Security Council?

Inquiring minds want to know…

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

Jus Post Bellum Symposium: Jus Post Bellum and the Ethics of Care

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.]

Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the law on the use of force and intervention, jus post bellum is grounded in both moral (e.g., ‘principles of humanity’, ‘dictates of public conscience’) and legal considerations. The two are often portrayed as in conflict with each other.

In just war theory, the concept has been traditionally linked with ‘judgment’ of conduct in international society (e.g. fairness of behavior, sustainability). In his ‘After War Ends’, Larry May has offered six jus post bellum principles that he considers as ‘primarily moral norms’: (i) rebuilding, (ii) retribution, (iii) restitution, (iv) reparation, (v) reconciliation and (vi) proportionality. They are framed as ‘obligations’, but are approached with caution by lawyers, since they are based on an abstraction of context-specific legal norms and principles or de lege ferenda considerations.

Lawyers have typically remained skeptical of the role of morality and ethics in their theorization of jus post bellum, partly based on risks of instrumentalization and abuse of authority. For centuries, discourse on jus post bellum has been dominated by claims over rights and duties of victorious states, entitlements after war and post-war justice. In the 20th century, approaches towards fundamental concepts (e.g. ‘punishment’ of states, ’occupation’) have changed through the increasing concern of international law with peoples’ and individual rights. A nucleus of legal principles is developing incrementally through practice and lawmaking in different areas, such as peace treaties (see e.g., Christine Bell pp 191-204, Jennifer Easterday, pp 379-412), peace operations (Dieter Fleck, pp 43-57), (post-) occupation law (see e.g,. Adam Roberts, Kristen Boon, Yael Ronen, pp. 428-445), international criminal justice (Fréderic Mégret, pp. 519-541) and statebuilding practice (Matthew Saul, pp. 447-464). One of the deficits of modern jus post bellum principles (e.g. accountability, vetting, reparations) and approaches to peacebuilding is that they are often presented in technical labels (‘rule of law’, ‘capacity-building’, ‘civil administration’) that mask their normative agenda or try to foster acceptance through reliance on ‘global community’ standards.

This trend is artificial and detrimental to the development of jus post bellum. The concept offers not only criteria for the evaluation of behavior (e.g., legality or morality of acts and/or omissions), but is geared at facilitating and guiding ‘choices’ in transitions. Such ‘choices’ require normative grounding, justifications and a moral stance that goes beyond legal rules and standards. Some rules and legal regimes in the areas of justice (‘principle of legality’), governance (‘political participation’) or human rights (property, reparation) require adjustment in order to accommodate the specific tensions inherent in the management of transition from conflict to peace (e.g., via targeted accountability, provisional centralization of authority, mass claim mechanisms). Moreover, the very meaning of what is ‘just’, ‘fair’ or conducive to societal peace in a specific context emerges through discourse and processes of interaction (e.g., demonstration and contestation) and is shaped by ‘institutional’ ethics and individual decision-making processes that cannot be seen in isolation of the law.

In the past decade, the turn to ethics under jus post bellum has gained a new turn with the focus on ‘sovereignty as responsibility’ under the Responsibility to Protect (R2P) which emerged as a modern extension of just war theory after Kosovo. The association of post-conflict responsibility with legal duties of reconstruction or rebuilding after conflict’ has created anxieties and fears among states. This has led to a marginalization of the ‘responsibility after conflict’ in UN practice (e.g. ‘Implementing the Responsibility to Protect’). Where ‘responsibility’ is invoked in public and legal discourse, it is typically conceptualized through the perspective of the agent (wrongdoing, causality) or the exercise of control (e.g. the Pottery Barn rule ‘If you break it, you own it’), as demonstrated in Iraq and thereafter. The inadequacies of this approach have been criticized by others, such as James Pattison, who suggests a ‘capacity’-based model (here) that might have some parallels with the ICJ’s approach towards prevention in Bosnia and Herzegovina v Serbia and Montenegro (para. 430).

One way to re-think this ‘responsibility’ dilemma that has not received enough attention in jus post bellum is the concept of the ethics of care. The theory of ‘care’ offers an alternative normative grounding for responsibility than rationalist accounts (e.g., power, influence, interests etc). It shifts the attention from the ‘agent’ to the ‘other’, and provides a ‘relational account’ between actors, based on ‘need’, ‘empathy’ and concern. The connection between ‘care’, morality and modern accounts of responsibility has been drawn by various scholars  (see e.g., Virginia Held, in relation to international law; Louise Arbour and Craig Barker, in relation to R2P; and Signal Ben-Porath in relation to jus post bellum). This argument takes into account the interdependence between agents and subjects of protection, and places greater attention to the needs of individuals, their treatment as subjects rather than objects, and the relationships arising through the assumption of agency in international action. This care-based approach is often discarded as a utopian project. I would argue that it deserves greater space in the theorization of particular areas of jus post bellum.

Many of the existing humanitarian norms guiding intervention and armed force assume the existence of a relationship of ‘care’. Care is a fundamental prerequisite of the ‘precautionary’ principle. Duties of care have been identified as an essential element of the application of R2P (‘Responsibility while Protecting’). Arguments of ‘care’ inform the interpretation and application of certain normative concepts under the law of armed force, such as ‘necessity’, ‘proportionality’ or ‘humanity’. These principles reach beyond warring parties, apply both during armed conflict and in post-conflict contexts and entail duties of care for the aftermath of conflict. The regime governing the protection of the environment (see Cymie Payne, pp. 502-518) is a paradigm example. It encompasses a duty to remedy violations irrespective of the legality of conduct or intended harm.

Many fundamental aspects of peacebuilding cannot be explained without the existence of relationships of care. The concept of ‘care’ is an inherent element of the justification of the exercise of public authority over foreign territory. It underpins the legitimacy of ‘trusteeship’ under the law of occupation or idea of ‘caretaker’ government under international administration. The ethics of care require agents to justify for whom they exercise authority, and to test whose consent (Aurel Sari, pp. 467-501) matters. Moreover, they determine fundamental parameters of ‘exit strategies’ (see Dominik Zaum, pp 334-344), such as the balance between continuing commitment and the necessity of disengagement of international actors.

The need to frame responsibility through ethics of care is reflected in regulatory practice. In past decades, there has been a significant rise in the development of ethical principles, code of conducts and informal instruments (Geneva Call, ‘Ruggie’ principles) determining the conduct of individual actors (e.g. UN personnel, non-state actors companies) in conflict and post-conflict environments. They rely on the ethics of care and are necessary to translate abstract obligations into tangible guidelines for action. Rather than denying the space of the ethics of care in international law and the development of jus post bellum, we should embrace it.

Jus Post Bellum Symposium: The Responsibility to Protect, Jus Post Bellum, and the Duty to Rebuild After War

by James Pattison

[James Pattison is a Senior Lecturer in Politics, University of Manchester.]

It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty on the responsibility to protect (R2P). But who has the responsibility to rebuild? So, for example, who should rebuild Libya, Mali, and Afghanistan? Should the U.K. and U.S. have been tasked with rebuilding Iraq, given that they fought the war, or were other states, such as France and Germany, morally required to help rebuild Iraq, even though they didn’t take part in the war?

As I discuss at greater length in a forthcoming article in the British Journal of Political Science (on which this blog draws), some have offered an (often implicit) assignment of the issue of who should rebuild. In particular, many leading advocates of the relevance of jus post bellum for Just War Theory (such as Gary Bass) hold what we might call the ‘Belligerents Rebuild Thesis’. This asserts that those who have been involved in the fighting should be tasked with the duty to rebuild. This is often asserted about the unjust aggressors: they should rebuild after to repair the mess that they have caused. This was a claim that was frequently made in the aftermath of the 2003 War in Iraq. For instance, Colin Powell purportedly claimed ‘you broke it, you own it’. But it may also be applied to the victors in general, regardless of the justice of their war in terms of the principles of jus ad bellum. For example, the victors should rebuild to ensure that the basic needs of those in the defeated belligerent are met. But it’s perhaps more often defended for those that fight just wars, such as those that undertake just humanitarian interventions. For example, Michael Walzer argues that

Once the Vietnamese had sent an army into Cambodia, for the best of reasons, to save lives (whatever their other reasons), they were bound to keep on saving lives in Cambodia. They had to secure and maintain some kind of law and order and establish a nonmurderous government to replace the one they had overthrown.

There are several problems with this view, that is, the Belligerents Rebuild Thesis. The first is that the belligerent may not be the most suitable agent to rebuild. This is perhaps most obvious when it has fought an unjust war. For example, its post-war occupation may be heavily opposed by the local population leading to a reigniting of the conflict. This point can be made more precisely: the belligerent may not have the (i) right to rebuild. They might, for instance, be likely to do a very poor job of rebuilding. But, even if belligerents have the right to rebuild in certain cases, it doesn’t follow that they are likely to have the (ii) duty to rebuild. Other agents may be better able to carry out the rebuilding than the belligerent.

But why does the Belligerents Rebuild Thesis seem so popular? What lies at the heart of its intuitive appeal is that belligerents sometimes possess duties of reparation, by which I mean duties to redress the wrongdoing for which they are morally culpable. But duties of reparation are of limited relevance for the issue of who should rebuild. It may be difficult to trace causally which agents were the belligerents—and so owe reparative duties—and there might not always be left belligerents to which to assign the duty rebuild. For instance, a war between two statist parties may be so acrimonious that the institutions of both states no longer function. Alternatively, especially in the case of a non-state war, the belligerent (for example, a guerrilla movement) may no longer exist after the war.

The second problem with the Belligerents Rebuild Thesis is that it seems unfair in cases when the belligerent has fought a just war. Such a belligerent has done nothing wrong that means that they, rather than anyone else, should bear the costs of rebuilding.

Third, and related, the Belligerents Rebuild Thesis wrongly excludes non-belligerents from the rebuilding process. Non-belligerents (for example, the UN) may sometimes be required to rebuild since they are best placed to do so. In fact, if the Belligerents Rebuild Thesis is premised on the claim that ‘you broke it, you own it’, it seems to be too narrow, since certain non-belligerents may have also been culpable for the war, such as those that finance the war and provide military equipment.

The fourth problem is that it may have problematic consequences for future wars. If it were required of just belligerents that they have to rebuild the other party after the war simply because they are a belligerent, this may discourage potential future just interveners and defenders from launching their wars.

Instead, I’ll now briefly suggest that there exists an international, collective duty to promote and to establish just political institutions, which translates into a duty to rebuild for the most justifiable rebuilder.

An International Duty to Rebuild

Why is there this duty? It stems from a ‘Natural Duty of Justice’ to promote and to establish just political institutions, as presented by John Rawls and Allen Buchanan. If we accept certain natural duties of justice, such as to establish just political intuitions, which there is a strong case for if one is committed to moral equality, then it seems that there is a duty to rebuild. The international duty to rebuild after war involves an important set of cases for this duty–—that is, where just post-war political institutions do not exist.

In fact, the duty to rebuild after war seems to be one of the most important implications of the Natural Duty of Justice for two reasons. First, post-war societies may comprise several of the cases in which societies lack just political institutions. Second, the strength of the Natural Duty of Justice may be much greater in cases of the duty to rebuild because war-torn societies (for example, Somalia) sometimes have no effective political institutions, let alone just ones. It may be even more morally urgent to address anarchy and to establish basic order than to put in place just institutions where there are currently unjust ones.

Assigning the Duty to Rebuild

So, there’s an international, collective duty to promote and to establish just political institutions. But who should act upon this duty and deliver the duty to rebuild? To answer this question, it helps to consider two central issues: (i) which agent has the right to rebuild and (ii) which agent has the duty to rebuild.

To have the right to rebuild, agents must have just cause for rebuilding. Their rebuilding must be likely to be reasonably effective. And, it helps their justifiability if they are representative of the opinions of those in the political community that they are rebuilding on the means, methods, and goals of the rebuild. For instance, if those in the political community don’t want their community to be rebuilt by the agent or in a particular way, the agent should respect these wishes. They also should have a suitable intention and be authorised by the appropriate international political institution. This account of the conditions to have the right to rebuild will potentially shrink the possible pool of rebuilders. Within the remaining pool of agents–—all of which would meet these conditions–—who has the duty to rebuild?

The duty to rebuild should fall on the potential rebuilder whose rebuilding is likely to be most morally justifiable, which will turn on the likely capability of the rebuilder. To that extent, amongst those that have the right to rebuild, it should often be the most capable rebuilder that rebuilds.

What does this mean in practice? Who should actually rebuild? I can’t offer a full account of this here, but I’ll offer some brief remarks. First, there should be a presumption against the belligerents rebuilding. Instead, it seems that the rebuilding process shouldn’t only be authorised by the UN (that is, by the Security Council), but also generally be carried out by it (for example, by UN peacekeepers or a UN transitional administration). The UN, despite notable flaws, seems generally (if not always) best placed to rebuild in the most justifiable manner for several reasons. But all current potential agents have several pretty serious deficiencies; there needs to be significant reforms to our rebuilding architecture. There might be the case for a stronger UN Peace-building Commission to be able to handle all cases of post-war rebuilding fully justifiably that, for example, has improved coherence and coordination, and is very well resourced.

It seems that we have a duty to carry out such reforms. If the responsibility to rebuild requires a stronger UN system for rebuilding so that the responsibility to rebuild can be properly realised, there is a further duty of justice to act upon this. So, there is a duty to build an international institution in order to fulfill the duty to rebuild.

Jus Post Bellum Symposium: Navigating the Unilateral/Multilateral Divide

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.]

How should the idea of a jus post bellum be integrated into existing international law?  A wide array of norms now applies to post-conflict states: international humanitarian law, jus ad bellum, human rights law, the law of international organizations, and occupation law to name only a few.  If a jus post bellum is to be seen as essentially normative — as opposed to serving as a set of ethical guidelines — it must come to terms with certain essential attributes of the international legal system it seeks to join.

In my chapter of Jus Post Bellum: Mapping the Normative Foundations, I argue that one of the most fundamental attributes of the contemporary post-conflict period is the distinction between norms regulating unilateral action and those regulating multilateral action.  The two are distinguished by the presence or absence of a Security Council resolution under Chapter VII of the Charter.   A Chapter VII resolution may remove the actors addressed by its terms from the regulatory regimes listed above.   A jus post bellum that ignored this bifurcated structure would risk either incoherence or irrelevance.   If it regulated only unilateral actors then it would become largely irrelevant, since the Security Council now issues Chapter VII resolutions on virtually all post-conflict states.  If it sought to regulate multilateral actors it would become incoherent, since a Chapter VII resolution trumps virtually all other sources of law.  A jus post bellum that asserted primacy over such resolutions would find little support in contemporary doctrine.

My argument relies on three propositions.  The first is that absent a Chapter VII resolution, the most significant legal regimes applicable to the post-conflict period – jus ad bellum, occupation law and the law of human rights — are almost exclusively directed at states.   The codification of jus ad bellum in Charter article 2(4) applies by its terms only to states.  The same is true for Article 51 concerning the right to self-defense.  By contrast, the Security Council is not limited by the jus ad bellum.  The criteria in Charter article 39 triggering application of Chapter VII have been interpreted to allow a much broader scope of action than Article 2(4) permits states acting unilaterally.

The modern law of occupation is set out in the Fourth Geneva Convention of 1949.  Like all the Conventions, the Fourth governs the conduct of the treaty’s “High Contracting Parties.”  To date, these have been limited to states.  Neither the U.N. nor any other international organization has even attempted to ratify the Convention.   In 1999, the U.N. Secretary-General issued a Bulletin declaring that U.N. forces would abide by a generalized set of humanitarian norms “when in situations of armed conflict they are actively engaged therein as combatants.”  The Bulletin contains no guidelines specific to occupation, though the protection of civilians (“protected persons”) is emphasized.  Some have suggested a functional approach:  occupation law should bind IOs when they are capable of complying with its terms.  But because, as Marco Sassoli notes, “some provisions of IHL cannot be applied to the UN since it lacks, e.g., a territory, a penal system, or a population,” the result would be less than full compliance with occupation norms.

But even if fully applicable to Chapter VII operations, a central provision of occupation law would severely limit the Security Council’s ability to carry out the broad-based reforms that have become central to its post-conflict missions.  Occupation law prohibits broad legislative acts by occupiers in an effort to preserve existing laws and political institutions in the territory.  Unlike the human rights obligations in occupation law, this “conservationist principle” does not duplicate IO practice; indeed, it is the very antithesis of what multilateral post-conflict missions seek to accomplish.  Those missions are reformist by their nature.

Finally, while human rights law famously helped break the state’s near-monopoly on legal capacity to acquire rights under international law, it has not generally expanded obligations beyond the state.  Robert McCorquodale puts the matter directly: “The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as the United Nations . . . Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities.”  This despite the obvious reality that IOs such as the UN “can and do violate human rights.” (96 Am. Soc’y Int’l L. Proc. 384, 384 (2002))

The second proposition: even assuming one or more of these bodies of law would apply to both sets of actors in a post-conflict state, portions of the rules may be preempted under Chapter VII.  Security Council preemption is a consequence of Charter Article 103, which prioritizes commitments under the Charter over those imposed by other treaties.   This legislative power of the Council is now unexceptional, supported both by the ICJ and respected commentators.

The third proposition: if the web of treaty rules particularly important to post-conflict states – jus ad bellum, occupation law and human rights – was designed to regulate states acting unilaterally, the modern era has taken a decidedly different approach.  Starting in the early 1990s, the Security Council began engaging with all aspects of armed conflict.  The goal of multilateralizing warfare – integral to the Charter’s original design — has largely succeeded.  According to two major datasets of armed conflict, there were ten inter-state armed conflicts between 1990 and 2010.  All but two of these were addressed in one form or another by the UN Security Council.  The Council is also regularly involved in all aspects of civil wars, though precise data is not readily available.  For both types of conflict, the Council’s involvement has not been episodic but holistic, as it regularly addresses every stage and virtually every issue in armed conflict, from inception to termination.   This move to multilateralism has been particularly evident at the post-conflict stage.  The UN has become the indispensable actor in rebuilding political, economic and social institutions.  Its involvement has ranged from full international governance to advising transitional regimes.

The norms applicable to post conflict states are thus highly bifurcated.  On the one hand, the existing treaty regimes are state-centric in their design and also largely in their application.  On the other hand, the Security Council has multilateralized the post-conflict period for almost all states experiencing armed conflict in the last decade (to a greater or lesser extent to be sure).  But if we can assume the Council will not retreat from these reconstruction initiatives in the near future, existing post-conflict norms barely regulate the most important actor in the field.

Architects of a nascent jus post bellum thus face a dilemma.  The new regime can mirror the state-centrism of existing law, in which case it will be of questionable relevance to the IOs and IO-sanctioned operations dominating today’s post-conflict missions.  Alternatively, the new regime can expand its application to include multilateral actors.  But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules.  That seems an impossible task.  A third alternative would be to acknowledge the difficulty of including both states and multilateral actors under the same normative rubric and either (i) settle for a jus post bellum that remains exclusively state centric or, (ii) include multilateral actors within the scope of the new norms but fully recognize that the Security Council may depart from those norms when it chooses to do so.

Perhaps jus post bellum’s ascent into law is premature.  If the roles of individual states and the Security Council in post-conflict states can be harmonized, perhaps a more uniform body of norms can emerge that does require tailoring to the unique characteristics of each.  At that point the division between the two might recede in importance.  But for now it remains fundamental and a jus post bellum cannot avoid reckoning with its implications.

Jus Post Bellum Symposium: In Defense of a Central Role for Sovereignty in the Jus Post Bellum Conversation

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at the Grotius Centre for International Legal Studies, Leiden University and comments on international law issues at Spreading the Jam.]

Carsten Stahn, Jennifer Easterday and Jens Iverson have edited a comprehensive and rich volume on the law applicable in the aftermath of conflict, also known as Jus Post Bellum. This book covers a number of key areas on the timing and scope of jus post bellum, as well as timely discussions on the various bodies of law that might be relevant in that respect. As such it presents an important contribution to the legal, philosophical, sociological and political debates that occupy or should occupy those tasked with dealing with post-conflict situations.

One such debate relates to the relationship between jus post bellum and sovereignty and this is what I devolved my chapter in the book to. In the following blog post, rather than simply summarize the content of the chapter, I would like to briefly discuss the thinking behind writing it.

The starting point for me was the impression that sovereignty was often either forgotten or discarded to the periphery when discussing just post bellum issues. This was, on first analysis, intriguing because it is, or at least has been, one of the cornerstones of modern international law, and more generally, of international relations.

What I mean by « discarded » is that there there seems to be very little serious debate about sovereignty among a number of policymakers. This is possibly not that surprising in fact. “Sovereignty” is not a very popular term today in international law. It is considered to be an antiquated concept in our transnational and global world. More specifically, sovereignty is seen as an obstacle to the progressive spread of human rights. Sovereignty justifies claims by certain states that they are free to deal with « internal disturbances » and to reject any intervention (humanitarian or otherwise) in their domestic affairs. As a result, sovereignty is often presented as a problem, something to be fought and limited in order for more noble agendas to be realized.

In a way, sovereignty seems to have become the international law equivalent of Sauron’s eye in the Lord of the Rings : a vague, mostly undefined, ominous presence looming in the background and projecting its evil powers in various areas of the land.

What my chapter in the book aimed at doing is bring sovereignty back into the conversation in a more neutral way. This aim was grounded on two ideas. The first one is that sovereignty cannot be seen as inherently « good » or « bad ». More specifically, it is not ontologically an obstacle to human rights or the rule of law. In this sense, it is important not to confuse the empirical reality of how the concept evolved and is used on the discourse, and the concept itself. Which leads me to the second idea : sovereignty, in one form or another is a sociological necessity. What I mean by this is that sovereignty, in its simplest definition of a delegation of power (legislative, executive, judicial, police, administrative, etc.) to centralized authorities is an inevitable phenomenon in any human community that reaches a critical mass. This might seem like an obvious point to make, but it does appear to be forgotten in a lot, if not most of discussions on jus post bellum. This is illustrated in discourse and policy, for example, in what is, in my opinion, the over-emphasis on the role of civil society in providing basic social services, which should clearly be noted to be a short term solution, rather than a serious long term alternative to state institutions.

There is one challenge to my claim that sovereignty-related issues are underappreciated that I did not consider in my chapter and that I want to consider here. In a nutshell, I have been told that my concerns should be alleviated by the considerable focus on institution-building and capacity building, and more generally state building, as well as on the broader promotion of the rule of law and democracy. As a result, the argument goes, I should not be too bothered by the formal absence of the term « sovereignty » itself in most policy discussions on the issue.

I would like to venture several answers to this.

First of all, I do acknowlege that my concern does not necessarily have the same weight depending on the epistemic community or stakeholder concerned. Indeed, the idea that sovereignty is to be viewed with skepticism is mostly prevalent in the human rights discourse, as well as in certain circles of international criminal law. But given the weight of this discourse in the post-conflict discussions, as well as its pervasiveness in international affairs and in all branches of international law, I think the analysis remains valid.

Second of all, I think that there are areas of international law where it makes sense to continue to talk specifically about sovereignty, rather that resort to peripheral issues such of capacity building or rule of law. One such area which I discuss in my chapter is that of self-determination and statehood, which is an obvious component of a number of conflict situations and where issues of sovereignty are central. In those cases, sovereignty is not so much an obstacle to something else (like human rights) but something that is fought over by two sides and should therefore be taken seriously.

Third of all, more conceptually, I think that the concept of sovereignty captures something the complex relationship between the individual and the collective that is neither captured by the vague notion of rule of law (which is often shorthand for a bundle of human rights) or the idea of democracy (which is either also assimilated to human rights, or focuses too much on the consent of the « people » rather than on the authority of the sovereign). More specifically, what sovereignty implies which is not really dealt with by other concept is that there is something that the individual relinquishes to the sovereign, be it the capacity to legislate, execute laws without renewed consent everytime and the exercise of legitimate force to that effect. This idea of relinquishment of some individual choice (be it temporary or conditional) does not square well with the individual-centric logic that is at the heart of human rights.

In conclusion, I believe that sovereignty in a broad sense is a permanent feature of human institutions and, as a concept, helps us understand in ways that other concepts do not, the dynamic interactions between the individual, the collective and the inter-collective levels. In this sense, the ambition of the chapter, while proposing its own model to understand these dynamics through a revisiting of Georges Scelle’s role-splitting theory, was ultimately relatively humble and essentially methodological : by trying to wish away « sovereignty » for ideological reasons, a number of people, notably in the jus post bellum field, are depriving themselves of a key concept to understand the world they are trying to improve, thus making their own life harder, and, more importantly, drastically reducing their chances of success.

Jus Post Bellum Symposium: The Norm of Environmental Integrity in Post-Conflict Legal Regimes

by Cymie R. Payne

[Cymie R. Payne is Assistant Professor in the Department of Human Ecology at Rutgers University and the School of Law - Camden.]

In my contribution to Jus Post Bellum: Mapping the Normative Foundations, I claim that:

  • Existing treaty law prohibits some infliction of environmental damage, but only if it is “widespread, long-term and/or severe.”
  • There is evidence of state practice recognizing the importance of environmental integrity through rules of engagement and both formal and informal reparations.
  • There is also evidence of a normative belief in the right to environmental integrity and the obligation to respect that right during armed conflict.
  • Current scientific knowledge about the interactions of human and natural systems indicates that, even from a utilitarian and anthropocentric perspective, environmental impacts—even those of limited scope—can have serious consequences.
  • Consequently, the doctrinal law of armed conflict needs to be reviewed and modernized in light of scientific information about coupled human-environment systems, state practice, and widely held normative views regarding the environment.
  • Theories of jus post bellum that prioritize peacebuilding are more consistent with environmental integrity than retributive approaches.
  • Jus post bellum theory raises important questions about interventions in a defeated state in the name of environmental integrity, such as the restoration of Iraq’s marshlands or de-mining and safe disposal of the ordnance and other remnants of war.
  • Jus post bellum includes obligations and rights of the international community, as some aspects of the affected environment are the concern of humankind, not just the belligerents.

Carsten Stahn proposes jus post bellum as a body of legal rules and principles applicable after conflict to guide decisions in a transitional period. In this light, theories that prioritize peacebuilding over retribution accord best with environmental integrity. Indeed, the environment has been a source of innovation where it has been addressed seriously as a matter of jus post bellum, notably in the work of the UNCC and the UN Environment Programme (UNEP), discussed in the chapter. For example, formal environmental reparations have provided means for reconstruction, created a record of what happened, and may provide disincentive for repetition of unlawful acts. Other post-conflict practices that scholars of the jus post bellum could profitably study are environmental reconstruction and restoration efforts and ex gratia compensation payments, analyzing to what extent donors are motivated by legal norms of obligation, environmental solidarity, or the environment as a common concern of humankind.

The principle of environmental integrity that is at the heart of my argument is both easily understood and deeply ambiguous. I choose the term “environmental integrity” to characterize the principle because it, along with “ecological integrity,” is widely used in natural and social sciences where it generally refers to complete and intact natural system processes. It is also intuitively meaningful. In my proposed definition, it represents an obligation owed to the international community by states and individuals, belligerents, civilians, and peacekeepers. Its legal roots are in principles of human rights, public trust and just war. The International Court of Justice has recognized the environment as an “essential interest” of states in its Gabčíkovo-Nagymaros case, and in the Nuclear Weapons Advisory Opinion it described it as the “living space of[ ... ] human beings.” The “no harm” principle accepted as customary international law implies environmental integrity as a complementary principle.

Ambiguity arises as to exactly what “environmental integrity” means. I argue that it should be understood primarily with reference to ecosystem function where that is in tension with cultural, political or economic definitions. Nonetheless, in the “Anthropocene era” it is difficult to identify a natural state since humans have affected almost every planetary system. In the post-conflict period, reparations programs have the problem of applying the Factory at Chorzów rule to “reestablish the situation which would, in all probability, have existed if that act had not been committed,” because it is often impossible to restore the pre-existing ecosystem functions even if it is possible to restore different ones. The resulting ambiguity is a subject for my current research.

The environmental integrity principle is needed because the scope of the environmental concern expressed in treaties is too restricted, incomplete, inadequately integrated into military activities, and too rarely enforced. Although both the NATO bombing of the Former Yugoslavia and Iraq’s invasion, occupation and retreat from Kuwait caused acknowledged environmental damage, legal experts have advised that neither reached the threshold of Additional Protocol I to the 1949 Geneva Conventions, Convention on Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), and the Rome Statute for the International Criminal Court, which all use “widespread, long-term and/or severe” as the threshold condition for prohibited environmental harm.

Though ultimately adopted in the treaty, this phrase was widely criticized during the ENMOD negotiations, one delegation stating that “[i]t was alarming that the use of such monstrous techniques could be legitimized provided their effects were not ‘widespread’, which was defined by the co-sponsors as covering several hundred square kilometres, or ‘long-lasting’, defined as having a duration of several months or about a season, especially since in the assessment of such effects there would always be a large subjective element.” The UN Environment Programme (UNEP) has criticized it as both too stringent and too imprecise; the ICRC would also apply a different standard. The UN Compensation Commission, operating under Security Council Resolution 687 and in a context where the respondent was not a party to the treaties, declined to apply “widespread, long-term and/or severe” as a threshold in its claims review and eventual award of over US$5 billion for environmental reparations.

The environment is often seen as the background to the fighting and its human tragedies—we see little in the news about toxic effects of chemical weapons on soil and water, killing of wildlife (including gorillas and elephants), oil spills, destroyed landscapes or felled forests in Syria, Afghanistan, Iraq or the Democratic Republic of the Congo. Yet environmental integrity is an essential part of breaking cycles of conflict, restoring societies and reestablishing the rule of law.

Jus Post Bellum Symposium: Jus Post Bellum, Lex Pacificatoria, and Transitional Justice

by Christine Bell

[Christine Bell is Assistant Principal (Global Justice), Professor of Constitutional Law, University of Edinburgh.] 

A big congratulations on the editors for the new volume on Jus Post Bellum.  It is a great resource for those interested in all aspects of the debate and forms a comprehensive mapping of a broad range of perspectives.

One of the interesting aspects of the book is the constant interrogation of where Jus Post Bellum sits with regard to other similar and potentially competing concepts: transitional justice, lex pacificatoria, and R2P.   Several authors – myself included – either advocate these alternative perspectives, or discuss how jus post bellum might be reconciled or ‘cross-fertilized’ with these perspectives.

While I touched on this in my chapter, I have on reading the book wondered more and more why there has been such a need to ‘invent’ new concepts – or in the case of jus post bellum ‘rediscover’ and ‘reinvent’ old ones, to address our current context.  What is going on, when a range of people invent largely similar concepts that work in similar ways to try to capture what they feel they see going on in the interface of law and practice?

As with any book, reading it comes together with other things you are reading and working on when you receive it.  For my own part, the timing of the book, has come together with discussions we have been having in the Global Justice Academy, on Global Law, and Global Constitutional Law.    Most recently, last Friday we debated the draft text of Neil Walker’s book on ‘Intimations of Global Law’ (forthcoming), where he examines the different ways in which a concept of ‘global law’ might already be with us, if as yet fully unformed or ‘intimated’ rather than arrived and settled.

In it he groups perspectives such as jus post bellum, lex pacificatoria, humanity law, and also a ‘new law of international recognition’, (and I suspect could also include transitional justice and perhaps R2P) as ‘hybrid laws’  – one of seven ‘species’ of global law.

I will not rehearse here how he conceptualises these new ‘hybrids’ – for that you must buy and read his book (!).  Rather I suggest some of the dynamics that have pushed towards these particular overlapping conceptualisations of the role of international law in post-conflict environments.

First, these hybrids revolve around international law’s reach into the realm of domestic politics, and an attempt to regulate what in a sense could be understood as ‘constitutional moments’.  Second, they all constitute attempts to grapple with the lack of a clear war / peace distinction, which in turn frustrates attempts to work within the traditional boundaries of international human rights law, and international humanitarian law.  Third, they all have been shaped by the fast-paced evolution of international organizations from a position of seeing conflict within states as ‘not their business’, to placing such conflict at the centre of their business.

As Walker points out, all the conceptualizations also have in common that they see law not merely as passive regulator, but as in some sense generated by context, and responsive to it.  In this, all three – like other manifestations of ‘global law’ appear at once, able to pull on substantive evidence of their existence, and in another sense remain simultaneously incomplete, immanent, or as Walker puts it ‘intimated’ rather than with us.

Although this new Jus Post Bellum collection does not use this language, in stepping back from projects of regime creation, into concepts of ‘Jus post bellum’ as Dworkinesque ‘integrity’, or as ‘partial law’, or ‘project’, the intimated quality of ius post bellum has become much clearer, paradoxically, as the content of the concept has become more scattered and less tangible.  The strength of the concept as so refined, is in a sense the strength of the book: it points to a potential for jus post bellum to operate less as regime and more as discursive concept, through which we can interrogate a set of inter-linked moral, legal and political dilemmas that attend processes of peace-making.

Jus Post Bellum Symposium: Peace Agreements as a Framework for Jus Post Bellum

by Jennifer S. Easterday

[Jennifer Easterday is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, Faculty of Law, Leiden University.]

In my chapter of this volume, I suggest that jus post bellum should be considered as a broad, holistic concept that includes different functions: jus post bellum as providing a body of norms, as an interpretive framework, as a site of coordination, and as a site of discourse. I argue that a multi-faceted concept of jus post bellum can be informed by the norms and practices associated with developing and implementing post-conflict constitutions that arise out of peace agreements (“constitutional peace agreements”). Here, I will focus on jus post bellum as an interpretive framework, and how examining constitutional peace agreements can inform that function.

Constitutional peace agreements seek to transform conflict to peace by shifting violent conflict into political discourse. These agreements shape the environment in which jus post bellum operates. They provide a legal framework for a given situation and influence how the laws and norms of jus post bellum would be applied. They can serve as useful indications of the most important issues at the root of the conflict and provide a normative framework for the transition to a sustainable peace. Moreover, the processes of negotiating, drafting, and implementing constitutional peace agreements, and the law of peacemakers—or the “lex pacificatoria”—suggest important practices that could shape jus post bellum as an interpretive framework.

Considered broadly, constitutional peace agreements attempt to transform conflict to peace by (1) transforming societal norms; (2) bargaining and negotiating over solutions to the underlying causes of conflict; (3) creating a space for peaceful discursive conflict resolution; and (4) creating new state institutions. In undertaking these transformative steps, the study of peace agreements indicates the need for common norms and an interpretive frame that can help foster sustainable peace. Constitutional peace agreements can go further in addressing wider notions of justice and issues critical for peace than international law. Using peace agreements as a guide, jus post bellum could more adequately address issues of justice, social truth, and the needs of victims of conflict.

Peace agreements translate between the different spheres and regimes that jus post bellum must navigate, including domestic/international, legal/political, and war/peace. Constitutional peace agreements navigate a “messy” middle way to peace, a tactic that could be useful for a flexible, context-specific jus post bellum. As argued by Christine Bell in the volume, it is important to leave these “messy” spaces of contestation and negotiation, in order to best maneuver what she calls the “dual commitment” of understanding both what justice requires and the evolving ideas of what justice means. In order to approach the transition from conflict to peace from a holistic point of view, jus post bellum will need to be able to accommodate changing priorities. In turn, through its holistic focus on sustainable peace, jus post bellum can provide interpretive principles or considerations as to how these priorities should be balanced throughout the transition.

Jus post bellum can also draw on our developing understanding of the shortcomings of constitutional peace agreements. Peace agreements are limited by who sits at the table and can result in counter-productive political arrangements. Indeed, the importance of inclusion is one of the biggest lessons jus post bellum might learn from constitutional peace agreements. The inclusion of multiple voices and the balancing of competing priorities can influence the potential success (or failure) of the constitutional peace agreement. In practice, jus post bellum will also face similar issues with respect to inclusion and balancing interests—peacebuilders will need to take special consideration of interests that might historically be under-represented, even if they have not been immediately party to the conflict or represented in the constitutional peace agreement.

Furthermore, constitutional peace agreements can be difficult to implement and risk being undermined by spoilers, giving rise to a fragile normative basis for peace. They also leave gaps and silences with respect to critical issues, such as gender equality, that can undermine peace efforts. (Although, as I argue in the volume, jus post bellum’s focus on sustainable peace could help fill those gaps.) With international involvement, constitutional peace agreements may reflect neo-colonialist tendencies or be further weakened by imposed timelines and competing priorities of international interveners.

This last point is a critical one, given the prevalence of international interveners in peace agreement negotiation, drafting, and implementation. According to an analysis of a UN peace agreement database, peace agreements nearly always have some type of international involvement. Studying the successes and failures of constitutional peace agreements suggests that jus post bellum should include principles for international interventions that reflect the following:

  • transparency (especially about certain non-negotiable policies that might arise during consultations, such as amnesties for international crimes)
  • accountability (e.g. adhering to the same human rights standards they are promoting)
  • having a base knowledge of the language and culture of the country
  • acting collaboratively with all segments of society
  • prioritizing the interests of society over those of interveners
  • taking a long-term, holistic view to normative and practical issues
  • taking a unified and coherent approach to balancing competing goals
  • ensuring there is sufficient time for outreach and public education about peacebuilding processes
  • maintaining a limited and legitimate international influence over the process; and
  • the inclusion of women’s interests and traditional concepts of justice as peacebuilding priorities, amongst others.

These principles could form the basis of a jus post bellum interpretive framework, in which the application of laws or implementation of peacebuilding projects is undertaken in an effort to maximize, for example, inclusion, local ownership, and coherence. They could form a practice-oriented basis for the jus post bellum “ethics of care” called for by Carsten Stahn elsewhere in this symposium.

Based on an examination of the practice and particularities of drafting peace agreements and post-conflict constitutions, it seems that rather than prescribe hard-and-fast rules for liberal institutional design, it is critical for jus post bellum to include a set of flexible standards that aim to optimize sustainable peace within a framework that can function in specific contexts. I argue that jus post bellum should not be limited to rigid rules or laws. Jus post bellum can—and should—be fluid and context-specific and involve the larger polity of a conflict state.

Jus Post Bellum Symposium: Towards an Alternative Paradigm–Jus Post Bellum as Transitional Justice

by Ruti Teitel

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, www.securityintransition.org.]

I am delighted to participate in the discussion regarding Jus Post Bellum: Mapping the Normative Foundations.  The book’s publication on the 100th anniversary of World War I and its aftermath set out in the Treaty of Versailles reflects the growing appreciation of the importance of the area of the law of war known as jus post bellum.  Yet the relationship of law to conflict today is a complex one, and contemporary circumstances hardly reflect utopianism. There are important changes in post bellum expectations beyond the return to the status quo ante and I regard these as best captured by a more comprehensive concept and vocabulary associated with these periods of political flux: transitional justice.

Getting Beyond the Restoration of the Status Quo Ante

What is owed to Iraq or to other peoples who are the ‘beneficiaries’ of wars of supposed liberation? This is the burning question of the last decade in Iraq, Afghanistan, and most recently Libya. With the end of the Cold War we have seen a return to wars of intervention, with implications for the scope and character of jus post bellum. Where a war is justified on humanitarian grounds, i.e., a just war, what are the implications of this justice in the ad bellum for jus post bellum?  Might the injustice of a war’s beginning imply greater post-war duties? Or does the logic work the other way around? In the event that a war is initiated for humanitarian reasons might that well imply added duties, whether during or after the conflict? Just how does post-war justice relate to the broader questions concerning the meaning and direction of the justice of war?  And to what extent does the contemporary iteration of the just war tradition, its principles and values guide the question of what must be done following a conflict?

There is a need to rethink the earlier classical approach to post-war justice as being fundamentally restorative. Posing the question today of what values and related principles regarding rights and duties should apply, as this book does, jus post bellum inevitably constitutes a departure from a focus on restoration (which takes implicitly or explicitly the pre-war status quo as a decisive normative benchmark). Historically, this area was dominated by a preoccupation with unjust wars and the settlements that followed those wars, focusing on restraining or regulating the punishment of the aggressor for disrupting the status quo ante.

This view of post bellum is in historical or retrospective terms – where what is at stake is responsibility in a backward-looking way, as guided by the justice of the war purpose itself and the goal of returning to pre bellum conditions.

In this context, victors were free to punish, within determined constraints – limits on collective punishment, spoils of war, plunder, return of prisoners of war, occupied territory, etc. This was often complemented by amnesties and reparation schemes animated by restorative objectives. The post-World War I settlement at Versailles, the current anniversary of which we are currently marking, was widely regarded as an instance of failed justice and, even worse, as having the effect of promoting the return of war.

Now, however, we can see that we are moving away from this traditional approach to jus post bellum in a number of ways: first, there is a move away from the dominant concern of jus post bellum conceived as a backward-looking, often retroactive enterprise, and as restraint on retribution, to a broader framework involving a host of duties that relate not just to the past but also to an often protracted present, as well as forward-looking goals for a peaceful future. The aegis or subject of post bellum norms has become greatly expanded.

Many questions today concerning what obligations attend aftermaths are being raised in the context of transition, sometimes following conflict, often not.  For a number of reasons, this view increasingly overlaps with conflict. At a time of persistent smaller conflicts, i.e., of pervasive violence, often of ongoing internal conflicts where there is no clear end, and which are not even clearly about state-building or democratization, this inquiry leads to a questioning of the meaning of ‘post bellum’ in jus post bellum. As some of the authors in this volume concede, the parameters of post bellum have become murky.

Moreover, there is a related shift in our understanding of responsibility away from the state-centric view as the singularly relevant subject of jus post bellum, as the older view of restoration assumed the state to be the relevant object of restoration. At the same time, there has been a move away from collective sanctions levied upon a state or its people. Individualized punishment is clearly on the rise, most dramatically through international criminal justice.

Towards an Alternative Paradigm: Jus Post Bellum as Transitional Justice

In the current context, one can see that justice considerations enter the picture from the outset, taking into account that humanitarian considerations have been invoked as a justification for war itself. In today’s wars of liberation, internal ethnic conflicts are often involved; the issue is as much or more to do with settling scores with fellow citizens as punishing a foreign aggressor. Clearly, this brings transitional justice to the fore.

Insofar as the new wars are often conflicts animated by the values of liberalization, freedom, and so on, we can see ways in which the aegis of jus post bellum overlaps with the aims of transitional justice. Justice is not conceived as strictly punishment oriented, as assumed in the legalist paradigm. Nor is it confined to restitution and the restorative dimension implied by the earlier understanding of post-war justice. Indeed, it could well take in the full context and modalities of transition and transformation. The issue is being reconceived in terms of justice as security. Within the evolving framework, there is a concern to identify responsibility beyond the state to private actors as well. There are duties that follow even when a war is just.

Thus, ‘post bellum’ seems too limited or inappropriate today because of the unstable or undetermined boundaries between conflict and post-conflict situations. Transitional justice is arguably more capacious because it allows for advancing goals beyond those associated with a war’s beginning, such as transformation, namely purposes going beyond retributive or restorative justice.

I invoked the term ‘transitional justice’ in 1991 to represent a move away from the discourse that associated such phenomena purely with the law of conflict. The idea was that the aims of such processes were in part forward-looking – involving democratization – and not merely backward-looking and enmeshed with war. Moreover, the use of the term ‘transitional justice’ also addressed the central issue of the time: the extent to which the relevant democratization processes seemed less revolutionary and more gradual, more transitional, often taking decades, for example in post-dirty war Latin America. We now have a rich set of illustrations from the post-Soviet bloc, Asia, and the Middle East.

The increasingly pervasive involvement of courts and tribunals in matters of post- conflict justice demands a conception of proportionality that is not simply political but also jurisprudential. This is far from being limited to criminal trials. One also thinks of Alien Torts Claims actions in the United States and the role of the Inter-American Court of Human Rights and the European Court of Human Rights in post-conflict accountability. We can see that justice today has gone from a prerogative of the victor, which needs restraining, to a shared international obligation. This development in and of itself informs the meaning of the new proportionality.

With renewed demands for military intervention, interest in post bellum justice has never been greater. Given the human rights revolution, to be sure, interventions are being justified on human security grounds but also waged in the context of new constraints, of human rights and international humanitarian law, as well as democratization. This goes some way to explaining the extraordinarily high demands for post bellum justice, which has now expanded to cover a broader period associated with conflict and to address the security, not just of states, but of persons and peoples.

Jus Post Bellum Symposium: Contrasting Transitional Justice and Jus Post Bellum

by Jens Iverson

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.]

I would like to thank Opinio Juris for the opportunity to discuss the contrast between Transitional Justice and Jus Post Bellum.  This is a subject I have explored in Jus Post Bellum: Mapping the Normative Foundations, in the International Journal of Transitional Justice, and in Jens David Ohlin’s blog, Lieber Code.

I begin with basic definitions of each term, and then briefly discuss the application, goals, and future of each term.

The most useful definition of Transitional Justice

In Transitional Justice Genealogy, Ruti Teitel defines Transitional Justice “as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”  This is, of course, not the only definition of Transitional Justice, but I think it is one of the best.

Subsequent definitions tend towards vagueness.  The UN defines Transitional Justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”  This lacks any specific mention of political change.  The International Center for Transitional Justice describes Transitional Justice as “an approach to achieving justice in times of transition from conflict and/or state repression.”  This lacks not only an emphasis on political change, but does not require state wrongdoing for the notion to apply, including also transition from conflict.

The main substantive emphasis of Transitional Justice should be on justice for human rights violations in the context of political change.  Armed conflict is unnecessary for the concept to apply.  The goals of Transitional Justice are fundamentally tied to the aspiration of transition, both towards justice for past violations and towards a cementing of a new political order that will prevent the old order, with its attendant human rights violations, from returning.

The most useful definition of Jus Post Bellum

The most useful definition of the term jus post bellum is the body of legal and ethical norms that apply to the the transition from armed conflict to a just and sustainable peace.  Jus post bellum must be understood in the context of its sister terms, jus ad bellum and jus in bello.  All of these terms are concerned with the use of armed force as a matter of primary, central importance.  Collectively, they seek to describe the constraints, capacities, obligations, and rights regarding whether armed force may be used at all, related to the use of armed force during armed conflict (how it may be used), and with respect to the transition from armed conflict to a just and sustainable peace.

In contrast to Transitional Justice, the substantive emphasis of jus post bellum is broader than human rights violations.  It also includes post-conflict restitution including restitution for property loss, violations of the laws of armed conflict that tend to affect the subsequent peace, environmental law (including legal access to natural resources and regulating the toxic remnants of war), state responsibility outside of the realm of human rights, recognition of states and governments, laws and norms applicable to peace treaties and peace agreements, peacekeeping, occupation, and post-conflict peace building.  It includes both applicable international law and the specific domestic laws.  It involves the application of both persistent areas of law that apply both during the transition to peace and during other periods (e.g. human rights, international criminal law, state responsibility, investment law, refugee and asylum law) and non-persistent areas of law that only (or mainly) apply during the transition to peace and not at other times (lex pacificatoria, the creation and immediate application of amnesty, post-conflict lustration, post-conflict reconstruction).  Jus post bellum is rooted in these legal concerns, and also in the tradition of considering the ethics of war known as the Just War tradition.

Contrasting the Application of Transitional Justice and Jus Post Bellum

While jus post bellum is substantively broader than Transitional Justice in many respects, jus post bellum is also clearly inapplicable in many scenarios where Transitional Justice is applicable.  Following a peaceful, non-violent revolution or regime change, the principles of jus post bellum may apply by analogy, but not directly.

Similarly, one can imagine a change in regime in which no significant human rights violations were perpetrated by the previous regime, deposed by armed conflict.  Armed conflicts happen without massive human rights violations.  Additionally, armed conflicts occur without regime change.  In these instances, Transitional Justice would tend not to apply, but jus post bellum would.

Contrasting the Goals of Transitional Justice and Jus Post Bellum

Just as jus post bellum is necessarily connected to an armed conflict, to the degree that jus post bellum has an aspirational character, it must relate in part to questions of war and peace.  One would think that jus post bellum is tied to the contemporary aspirational character of jus ad bellum and jus in bello: to constrain the use of armed force.  A just and sustainable peace is a central aspirational norm of jus post bellum, following a long but not uncontested tradition in international law.

The goals of Transitional Justice, in contrast, are tied to a transition in the human rights regime.  This is not to say that human rights norms are not central to jus post bellum—they are.  The supposed tension between different maximands such as peace and justice or truth and justice is frequently overblown.  Discovering the truth about human rights violations and achieving justice for those violations is widely-recognized as important in building a positive peace.  But there will be responses to human rights violations that are not properly the concern of jus post bellum.

The Future of Jus Post Bellum

Whether Transitional Justice and jus post bellum continue to grow and endure as useful concepts depends in part on whether these terms are defined with sufficient rigor.  Because both terms deal with complex phenomena and benefit from scholarly interest from disparate fields and traditions, coming closer to a consensus on the definition of these terms is difficult.  Since Transitional Justice and jus post bellum will often (but not always) apply simultaneously, it is all the more important to attempt this difficult task—to define both terms clearly and develop them in accordance with contemporary realities.  It is important to recognize that multiple maximands will co-exist, rooted in the separate but related traditions, sometimes in tension, but hopefully almost always carried forward with good will.