By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson
In our previous post, “Jus post bellum and the ethics of peace,” we introduced the concept of jus post bellum, including its history, functions, and varied definitions. Because jus post bellum can operate simultaneously with related but distinguishable concepts, it is important to keep the goals of related concepts clear. Jus post bellum may serve a particular function in facilitating choice among competing interests in the transition from armed conflict to peace.
Relationship to related concepts
Jus post bellum overlaps with Responsibility to Protect (R2P), Transitional Justice, and the law of peace. It is sometimes even argued that it forms part of these concepts, but there are differences.
The concept of transitional justice emerged in the context of the post-democratic transitions of the 1990s. Traditionally, it has a different focus than jus post bellum. It is geared towards accountability for past violations and the establishment of new political order that would prevent human rights violations from re-occurring. Jus post bellum is not a ‘human rights’ or ‘justice’ project per se. It is geared at peacebuilding more broadly, focusing on the organization of the interplay between actors, norms, and institutions in situations of transitions, and the establishment of sustainable peace.
Jus post bellum is also distinct from Responsibility to Protect. R2P was developed to provide authority for protective duties and response schemes, through a definition of sovereignty as responsibility. Its application is linked to atrocity crimes. This trigger has oriented the concept towards prevention and response to conflict. Ethics of care in the aftermath of conflict have been side-lined in its operation. Jus post bellum is tied to the ending of hostilities. It entails certain due diligence obligations towards intervention, but is mostly focused on the organization of post-conflict peace. It includes negative obligations (i.e. ‘do no harm’ principle) and positive duties. In some cases, conduct may be warranted by R2P (e.g. continued international presence), but sanctioned under jus post bellum, i.e. due to lack of consent (e.g. unlawful occupation).
Monrovia, Liberia – 24 February 2012: The abandoned Ministry of Defence building stands empty and ruined, a reminder of the civil war here not so long ago. © MickyWiswedel via iStockphoto.
Content
In just war theory, some attempts have been made to define the ideal content of a jus post bellum. Areas included in this checklist are:
- Disarmament, Demilitarization, Re-integration (DDR)
- Compensation
- Punishment
- Constitutional reform
- Economic reconstruction
This ‘toolbox’ logic deserves critical scrutiny. These factors are typically tied to international armed conflicts, rather than dilemmas of internal armed conflicts, or mixed conflicts. More fundamentally, there is an inherent danger that jus post bellum might be used to tell what a ‘just society’ ought to look like.
An alternative way to think about content is to view jus post bellum as a mechanism to facilitate choice among competing interests. The concept provides an incentive to integrate the goal of sustainable peace into decision-making processes requiring a balancing of conflicting rationales. For example, this is relevant to peace arrangements, processes of governance, and redress for victims. How should ‘consent’ used in peace negotiation and peacebuilding efforts, and how inclusive should it be? What factors should be taken into account in the restoration of public authority and democratic rule? How can judicial reform be reconciled with ‘vetting’ of institutions? To what extent is there an adequate equilibrium between protection of fundamental freedoms and socio-economic rights in post-conflict settlements? Is damage repaired in a way that that addresses harm and needs of post-conflict societies?
Such choices require a certain ‘margin of appreciation’. In some areas, a deviation from peacetime standards may be acceptable. Classical examples are collective reparation, the focus on targeted accountability, or conditional amnesties.
Jus post bellum may also offer some guidance for specific procedures. One example is the permissibility of derogation from human rights, including their justification and declaration. Existing principles have been applied primarily in the context of human rights obligations of States. In the context of jus post bellum, such principles become relevant in relation to other entities, such as regional organizations, peace operations, or the Security Council.
Another example is ‘sequencing’ and coordination of the temporal application of specific responses. Under a ‘justice after war’ perspective, classical dilemmas of peace v. justice are at forefront of attention. In the context of peacebuilding, sequencing gains broader importance in additional areas, such as the timing of elections or the determination of status issues. Jus post bellum may further determine parameters for ‘exit’ after intervention.
The fundamental problems of minimizing the evils of war and building a robust peace are not new, but they are often treated as new. Too often, contemporary peacebuilding difficulties are treated as essentially unprecedented, when in fact legal history could serve as a valuable aide. A key thesis of jus post bellum is that the rich legal and philosophical traditions that guide the law of armed conflict and the general prohibition on the use of force could also inform the transition from war to peace. Unfortunately, these traditions are too often ignored. Rather than being depreciated or held sacred, those traditions must be refreshed and revisited if they are to be applied meaningfully to contemporary problems. We could extend the dualistic approach of jus ad bellum and jus in bello to a tripartite conception that includes jus post bellum. Such a conception would cover the entire process of entering into armed conflict, fighting, and exiting from armed conflict. This more comprehensive approach would improve our capacity to manage the enduring difficulties inherent in ending war and building peace. Jus post bellum does not offer the promise of a more comprehensive approach on its own, but only in combination with other, related concepts. Together, however, they offer the promise of transitions to peace that are both more just and more secure.
Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.
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The post The contours and conceptual position of jus post bellum appeared first on OUPblog.
By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson
Whenever there is armed conflict, international lawyers inevitably discuss the legality of the use of armed force and the conduct of the warring parties. Less common is a comprehensive legal analysis, informed by ethics and policy concerns, of the transition from armed conflict to peace. The restoration of peace after conflict is often sidelined in post-conflict legal analysis. Interventions and peace operations seeking to build a just and sustainable peace frequently suffer from a misalignment between ‘means’ and ‘ends.’ There can be stark discrepancies between the immediate reaction to conflict and post-conflict engagement. It is true that concepts such as ‘humanitarian intervention,’ the ‘Responsibility to Protect,’ (R2P) or the ‘protection of civilians’ (POC) have been used to establish capacity and political will to respond to atrocity situations. But attention shifts quickly to other situations of crisis once a cease-fire or peace agreement has been reached. Some of the underlying premises of engagement, such as ideas of responsibility or the ethics of care, receive limited attention in the aftermath of crisis and during the lengthy process of peacebuilding.
An old idea that seeks to mitigate these dilemmas is the concept of jus post bellum. The basic idea emerged in classical writings (e.g., Alberico Gentili, Francisco Suarez, Immanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural ‘framework’ to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ’post-war-justice’ (Michael Walzer, Brian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation, transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.
A modern understanding of jus post bellum requires a fresh look at each of the core components of the classical concept, namely the meanings of ‘jus,’ ‘post,’ and ‘bellum.’ In traditional scholarship, jus post bellum has mostly been understood as ‘justice after war’. However, in modern scholarship, the concept of ‘jus’ is debated. Does it mean ‘law,’ ‘justice,’ or a complicated mix of the two? The concept of time and what it means to be ‘post’ conflict, and even that of ‘war’ itself, with blurred distinctions between modern armed conflicts, are now more and more contested.
Functions of jus post bellum
Classical scholarship tied jus post bellum to the vindication of ‘rights’ and ‘duties,’ military victory, and the distinction between ‘victors’ and ‘vanquished’. Today, such conceptions require re-consideration. The experience of the two World Wars has confirmed the Kantian postulate that peace remains fragile if it contains ‘tacitly reserved matter for a future war’ (Perpetual Peace). But in modern conflicts (e.g. Afghanistan, Iraq), the entire concept of ‘victory’ has become open to challenge.
Insights from contemporary conflict research indicate that it is not enough to deal with the formal ending of conflict or the ‘pacification’ of violence. Distinctions between ‘winners’ and ‘losers’ become muddied, making it more difficult to mitigate the risk of a return to violence. Structural approaches to peacebuilding require engagement with social injustices, the ‘violence of peace,’ the establishment of ‘trust’ in norms and institutions and other factors that make a society more ‘resilient’ against conflict.
This makes it necessary to re-think the concept of ‘jus’ beyond its traditional focus on rights and post-war justice (i.e. punishment, responsibility). Past decades have witnessed a rapid rise of the ‘liberal justice model’ and norms and instruments of criminal justice. Core challenges of modern transitions lie therefore not so much in the definition of proper accountability mechanisms, but rather in their coordination with other rationales and priorities (i.e. protection of socio-economic rights) and their perception as elements of ‘just peace.’ This creates space for a modern function of jus post bellum. A modern jus post bellum may pursue different rationales beyond rights vindication or punishment:
(i) it may have a certain preventive function, by requiring actors to look into the consequences of action before, rather than ‘in’ and ‘after’ intervention.
(ii) it may serve as a constraint on violence in armed conflict; and
(iii) it may facilitate a succession to peace, rather than a mere ‘exit’ from conflict.
System, framework, or interpretative device?
The branding of jus post bellum as a modern concept comes with its own problems and politics. The very use of the label creates some risks (e.g. fears of abuse and instrumentalization) and concerns relating to the function and reach of law. But there is some space to ‘think outside the box.’ A modern jus post bellum does not necessarily have to be framed in the structure and form of established concepts, such as jus ad bellum or jus in bello. There is virtue in diversifying the foundations of jus post bellum.
First, Jus post bellum may be said to form a system of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. Some voices have even called for new codification, i.e. a fifth Geneva Convention. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. Some promise may lie in the strengthening of informal mechanisms and flexible principles.
A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.
Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.
In moral philosophy, the idea of jus post bellum has been associated with the struggle for ‘justice’ and ‘just peace’ for centuries. It has been driven by ambitions to reconcile ideas of justice and punishment with moderation towards the vanquished. These dilemmas continue today. But underlying tensions have received increased attention in the legal arena since the 1990s. Many of the unexplored strengths and new opportunities lie in the broader role of the concept in relation to peacebuilding. It is here where the concept provides new prospects to rethink some of the fundamental elements of the table of contents and institutions of international law, not necessarily in the form of the ‘liberal’ peace idea, but in a novel, pluralistic way.
Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
The post Jus post bellum and the ethics of peace appeared first on OUPblog.
