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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.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-navigating-unilateralmultilateral-divide/
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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.

http://opiniojuris.org/2014/05/08/jus-post-bellum-symposium-defense-central-role-sovereignty-jus-post-bellum-conversation/
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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.

http://opiniojuris.org/2014/05/07/jus-post-bellum-symposium-norm-environmental-integrity-post-conflict-legal-regimes/
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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.

http://opiniojuris.org/2014/05/07/jus-post-bellum-symposium-jus-post-bellum-lex-pacificatoria-transitional-justice/
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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.

http://opiniojuris.org/2014/05/07/jus-post-bellum-symposium-peace-agreements-framework-jus-post-bellum/
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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.

http://opiniojuris.org/2014/05/06/jus-post-bellum-symposium-towards-alternative-paradigm-jus-post-bellum-transitional-justice/
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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.

http://opiniojuris.org/2014/05/06/jus-post-bellum-symposium-contrasting-transitional-justice-jus-post-bellum/
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Jus Post Bellum Symposium: Omission Liability and Jus Post Bellum

by Jens David Ohlin

[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.

http://opiniojuris.org/2014/05/06/jus-post-bellum-symposium-omission-liability-jus-post-bellum/
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Weekly News Wrap: Tuesday, May 6, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

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Jus Post Bellum Symposium: Jus Post Bellum–The Value of an Interpretive Conception

by James Gallen

[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.

http://opiniojuris.org/2014/05/05/jus-post-bellum-symposium-jus-post-bellum-value-interpretive-conception/
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Jus Post Bellum Symposium: A Normative Critique of Jus Post Bellum in International Law

by Eric de Brabandere

[Eric De Brabandere is Associate Professor of International Law at the Grotius Centre for International Legal Studies and a Member of the Brussels Bar.]

My contribution to Jus Post Bellum: Mapping the Normative Foundations, edited by my colleagues Carsten Stahn, Jennifer Easterday and Jens Iverson critically examines the usefulness and accuracy of jus post bellum (JPB) as a legal concept and argues that the concept presents either a challenge to the objectivity of the post-conflict phase or simply brings together already existing obligations. It also questions the oft-heard underlying assertions and assumptions of JPB theories, namely that there is a legal void to which the concept would (need to) respond by filling the ‘blind spots’, and that post-conflict reconstruction does not function because of a lack of effective implementation of existing law applicable in such situations which requires recourse to a ‘new’ concept. Indeed, and although this is not always clear in JPB discussions, the concept has an important normative agenda – namely that the current regulation of post-conflict situations is inadequate and should as a consequence be modified. This –often latent and also vague in terms of which norms should be added- normative agenda of course is necessary for JPB scholars, since the absence of normative propositions restricts JPB to a pure umbrella concept which in turn makes the whole idea legally useless. I have expressed my criticism in this respect previously (in the Vand. J. Transnat’l L. and the Belgian Review of International Law). I will therefore focus in this post primarily on the recent idea of seeing JPB as an interpretative framework.

JPB as an interpretative framework is developed in detail by James Gallen in this contribution to the volume, but also is present in the chapters by Dieter Fleck and Christine Bell. The main idea behind this theory is to view JPB as a normative set of principles rather than substantive rules which would give guidance in the application of the existing rules governing post-conflict reconstruction. This understanding of JPB is considered to be important because of the need to interpret uniformly the various norms, rules and practices applicable in post-conflict reconstruction. Under such an understanding of JPB, the alleged ‘legal void’ somewhat becomes irrelevant, since the objective is not to add new rules, but rather to use existing principles and where possible interpret these rules in function of the identified overarching principles. It essentially functions to ‘solve’ the second main ‘problem’ of post-conflict reconstruction namely the lack of effective implementation of international law in such situations.

Even if one perceives JPB as an interpretative framework, grouping principles that are already of application in post-conflict situations –which undoubtedly is the case for the principles discussed- under a new notion, makes the question of the usefulness of jus post bellum persist. At the same time, this may be the only viable avenue for JPB. Roughly three principles are usually considered to part of this ‘interpretative legal framework’: the principle of proportionality, the accountability of foreign actors, and the principle that post-conflict reconstruction efforts should be for the benefit of the population (trusteeship, fiduciary type of authority, or stewardship). These principles are discussed in total or in part in the contributions of Gallen, Bell and Fleck in the JPB volume, but also elsewhere. Although these principles have been used in the context of the substantive content of JPB as well (when it is used a normative framework) the difference in their use here is the fact that the objective is not necessarily to ‘create’ new substantive rules applicable to post-conflict reconstruction -e.g. by ‘imposing’ trusteeship in all aspects of post-conflict situations-, but rather to use these principles to interpret the existing legal norms applicable in post-conflict reconstruction. They would then function as overarching principles which may guide foreign actors involved in post-conflict reconstruction to interpret their mandate, either under the laws of occupation or under Security Council resolutions, and the general obligations they have under, for example, human rights law, the laws of armed conflict and refugee law.

The main problem here again is that the identified principles (proportionality; trusteeship, and accountability) in fact are already very much present in general international law. This is without doubt the case for proportionality –a general principle of international law-, but also for the trusteeship principle -that post-conflict reconstruction efforts should be for the benefit of the population which is inherent in the laws of occupation, and in case of action taken by the Security Council-. The principle of ‘accountability’ also is already very much present in general international law and in the areas of law which are of specific relevance in post-conflict settings.

Secondly, these ‘principles’ vary substantially in nature and legal force. ‘Proportionality’ is a general principle of international law, applicable in various situations including in jus ad bellum, jus in bello and certain aspects of JPB. ‘Accountability’ on the other hand constitutes an ‘objective’ within a legal system. It has no or little legal force. ‘Trusteeship’ also is very different in nature in that it applies to situations of occupation, and implicitly to Security Council mandated missions, but the relevance of the concept outside these situations is almost inexistent. These principles, admittedly, indeed may serve to guide foreign actors involved in post-conflict reconstruction, for instance, in terms of setting up adequate mechanisms to challenge acts taken by these actors or in interpreting their mandate. The question very much is whether this is not already the case. Proportionality, fiduciary authority and accountability are either directly or indirectly already part of the applicable norms in post-conflict settings. The question thus remains whether, even in such a minimalist conception of JPB, it really is useful to group existing principles in the new concept. If, on the contrary the objective is more normative, e.g., to impose these existing principles on situations not already covered by these –which is not entirely clear and would in any event have a very limited effect-, the question remains how this would operate.

http://opiniojuris.org/2014/05/05/jus-post-bellum-symposium-normative-critique-jus-post-bellum-international-law/
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Jus Post Bellum Symposium: What’s in a Name? The Great Definitional Debate over Jus Post Bellum

by Kristen Boon

Carsten Stahn, Jennifer Easterday, and Jens Iverson’s new edited collection Jus Post Bellum: Mapping the Normative Foundations is a terrific contribution to the Jus Post Bellum field. The 26 chapters (one authored by myself) address a range of central issues, including interrogating the structure, content, and scope of the three separate pillars of jus / post / bellum. While the contributing authors reveal some fundamentally different and even opposing views on the essential building blocks of the enterprise, this discord is a sign of the area’s salience. The chapters in this volume indicate that the ongoing inquiry into the principles that should apply after war continues to be an issue area of great interest to practitioners, policy makers and scholars of various disciplines.

Interest in the topic is illustrated by the graph on p. 544 of the book, which indicates the “rock star” status of the concept. Before 2002, there were virtually no references to jus post bellum in the literature. Since 2007, however, references to jus post bellum have jumped off the chart, indicating a growing concentration of scholarship that tranches the disciplines of law, political science, international relations, theology and philosophy. As someone who writes in the field, I see the following as key pillars of jus post bellum investigation: (i) the recognition that building a sustainable peace is important to stopping cycles of conflict; (ii) the UN’s regular engagement in post-conflict reconstruction (raising practical questions about what types of post-conflict activities are important, and what laws should inform and limit IO activities), and (iii) exploring how the jus post bellum principles relate to, add and alter our existing legal framework, particularly with regards to humanitarian law and doctrines like the Responsibility to Protect.

At the meta-level, there are polarized views on the definition of jus post bellum, and more centrally, the utility and enforceability of a jus post bellum framework. Some scholars see that disagreement as a source of potentially useful debate (see in particular, chapters by Vatanparast, Easterday and Bell), while others focus on the conceptual unclarity that flows from these differences of views, emphasizing the limitations from a gender perspective (Hi Aolain an Haynes), the importance of clarifying the relationship with existing bodies of legal doctrines (Fox), and the potential for politicization (Vatanparast).

I note, with some irony, that some of my own work on the subject, all of which is less than 10 years old, appears to be classified as a product of the “old guard” (Introduction at 4), in that I have advocated a restrictive definition of jus post bellum and the norms that might apply in conflict situations. For example, in a 2005 article available here I define jus post bellum as the justice of post-war settlements and reconstruction, and I focus exclusively on non-consensual interventions. Others in the volume, in contrast, argue for interpretive and functional definitions, which are classified as newer approaches to the field. While these approaches certainly merit exploration, I continue to defend, and see greater value in a narrow but deep definition of jus post bellum. One reason is that to the extent that jus post bellum can and will serve a regulatory function, perhaps one day even evolving into a new Geneva Convention, there needs to be practical guidance, on concrete issues, drawn from identified cases. There is a necessary and critical reflective process that is required to getting to those regulations. My approach doesn’t suggest that philosophical inquiries should be short-circuited or curtailed, or that there isn’t value in the dialogue. However, in my view, there are considerable benefits in moving the conversation towards concrete proposals that could have a daily impact on actors in the field, such as the UN. I believe this is most effectively done when we consider jus post bellum as set of legal principles that apply in the transition from conflict to peace, as opposed to a site for exploration.

Another reason I believe a narrow approach is preferable is that there may be greater legitimacy in a narrow set of accepted principles than broad and prescriptive tools that miss the nuances of particular situations. Indeed, a relevant analogy here might be the ILC’s 2011 Draft Articles on the Responsibility of International Organizations (RIO), which, many have argued, would have been more relevant if they were less ambitious. I outline some of the controversies over the RIO articles here. For example, if the ILC had taken on a few issues in areas where there was developing practice and a perceived need for common regulation, it may have resulted a set of proposed Articles with more buy-in from IOs. As it stands, the decision to tackle the wide range of topics developed in the context of State Responsibility, and try to apply them to all IOs writ large, left many feeling that insufficient attention was given to the fundamental differences amongst IOs.

My chapter in this book, titled Jus Post Bellum in Non-International Armed Conflicts, addresses the applicability of jus post bellum to Non-International Armed Conflict Situations (NIACs). Because internal conflicts are regulated by fewer norms than international conflicts, NIACs, which are statistically the most frequent forms of conflict today, raises the following question: should the scope of Jus Post Bellum be different for NIACs? I argue for a “bounded discretion” approach, which would uphold the applicability of universal values that are derived from human rights, international criminal law and international humanitarian law, while instilling deference to local law-makers on issues of rebuilding, reconstruction, and constitutional design. I use the examples of margin of appreciation and the doctrine of subsidiarity to support this approach, to show how multi-level governance theories are relevant to jus post bellum. I argue that in applying jus post bellum, there should be a preference for governance at the most local level, unless the norms are non-negotiable, such as those derived from human rights. The editors of the book have recently applied this concept to justify a principled deviation from peacetime standards.

A final reflection on the scope of jus post bellum comes from a related body of work I am engaged in on UN sanctions. In assessing the Security Council’s peacebuilding activities through the guise of sanctions, I have been struck by the extent to which the Security Council is an important player in the jus post bellum field. Although the Council’s actions are discretionary, sometimes inconsistent, and are not applied in a regular way to like-cases, the Council has, nonetheless, been involved in some way, with almost every most major international conflicts in the last 20 years, save perhaps, Sri Lanka and Myanmar. Indeed, under the so-called sanctions for peace in Liberia and Cote d’Ivoire, the Council has brought about considerable transitions which fall within the jus post bellum framework, by, for example, mandating free and fair elections, an end to the incitement of violence and intolerance, management of natural resources, changes to the government’s administrative infrastructure, and cooperation with international courts and tribunals. I thus agree with Dieter Fleck’s observation on p. 62 that Security Council resolutions alone are not sufficient to create a jus post bellum framework, but there is no question that they provide distinctive areas to evaluate and should not be overlooked. Moreover, the Council’s references to peace agreements in sanctions resolutions, and its role in authoring and enforcing international norms, signifies its significant engagement in and influence over peace building and the jus post bellum. Stay tuned for a future post on this issue, which draws from an article I am writing on the topic.

I have little doubt this book will soon become essential reading for those interested in jus post bellum: it contains an incisive set of analyses on a range of important topics, and makes great inroads in continuing to map the field of jus post bellum. I am grateful both for the opportunity to have contributed to the volume, and for the chance to wear my other hat as an Opinio Juris blogger, to reflect on one of the central issues I saw emerging from the volume: the definition of jus post bellum.

http://opiniojuris.org/2014/05/05/jus-post-bellum-symposium-whats-name-great-definitional-debate-jus-post-bellum/
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