The contours and conceptual position of jus post bellum
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).
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)
- 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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