Exploring the Normative Foundations of Jus Post Bellum
Exploring the Normative Foundations of Jus Post Bellum
Abstract and Keywords
The successful transition from armed conflict to peace is one of the greatest challenges of contemporary warfare. It raises moral, legal, and practical problems that are the focus of intense interest across disciplines. The laws and norms of justice that apply to the process of ending war and building peace, or “jus post bellum,” is a central and growing concern. Definitions of the concept diverge, raising several unanswered questions that give rise to skepticism over the concept. This chapter traces different conceptions and definitions of jus post bellum currently shaping jus post bellum scholarship and practice. It attempts to provide a snapshot of current multi-disciplinary approaches to jus post bellum and clarify the current debate.
I. Perspectives on Jus Post Bellum
The successful transition from armed conflict to peace is one of the greatest challenges of contemporary warfare. It raises moral, legal, and practical problems that are the focus of intense interest across disciplines. The laws and norms of justice that apply to the process of ending war and building peace, or “jus post bellum,” is a central and growing concern. An inquiry into jus post bellum has occupied a significant space in the philosophical study of “just war theory,” but has been sidelined in international law and other fields. This volume thus has a foundational role: to examine the potential merits and criticisms of jus post bellum—not from one disciplinary standpoint, but from the angle of multiple disciplines and perspectives.
Jus post bellum has its most traditional and systemic grounding in just war theory. Brian Orend has defined jus post bellum as a natural corollary of jus ad bellum and jus in bello. He writes:
It seems, then, that just war theorists must consider the justice not only of the resort to war in the first place, and not only of the conduct within war, once it has begun, but also of the termination phase of the war, in terms of the cessation of hostilities and the move back from war to peace. It seems, in short, that we also need to detail a set of just war norms or rules for what we might call jus post bellum: justice after war.1
In this context, it is part of a structural framework spanning the temporal phases of conflict (before, during, and after), but remains one of the least developed branches of this area of moral thinking.2 Larry May’s book After War End provides a first attempt to take a modern account of organizing philosophical principles for post-conflict peace. He proposes six primarily moral norms as the basis for jus post bellum: rebuilding, retribution, reconciliation, restitution, reparation, and proportionality.3 But the question remains: (how) are those moral norms reflected in international law?
Outside of just war theory, the concept is even more terra nova. The concept has slowly gained attention in scholarship in different fields, emerging incrementally in different contexts: in peacebuilding and post-conflict reconstruction literature, the areas (p.2) of international humanitarian law4 or international security law,5 and in scholarship addressing “Transitional Justice” and the “lex pacificatoria”6 more generally. Here there is friction over whether the concept of jus post bellum should be construed to mean what the law is (or is not) (lex lata), or what the law should be (lex ferenda). Is there a current “law” of jus post bellum, or is it an aspirational normative framework? Is it based on existing bodies of law, customary international law, or does it depend on the creation of a new jus post bellum treaty? Answers to these questions and (legal) definitions of the concept diverge, raising several unanswered questions.
For example, one useful definition derived within the context of post-conflict peacebuilding suggests:
[J]us post bellum can be generally defined as the set of norms applicable at the end of an armed conflict—whether internal or international—with a view to establishing sustainable peace. [...] [T]he grouping of disparate standards within the same frame of reference underscores the need for a comprehensive and coordinated approach to the numerous rules governing post-conflict situations. From a systemic perspective, it paves the way for a contextualized interpretation—and, by extension, a contextualized application—of existing norms in order to better take into account the specificities which characterize the difficult transition from war to peace.7
However, this leaves several open questions. Which norms fit within jus post bellum? Are there secondary norms as well as primary norms? What are the sources of these norms? Do they apply equally in all types of armed conflict (whether internal, international, or something else)? Do they apply equally across all temporal phases of a conflict? Do they apply equally (or at all) to non-state actors, coalitions of states, as well as states? How does a contextualized approach work in practice? How do they interact with other related normative frameworks? How would jus post bellum impact different constituencies, such as women, local populations, or insurgents? What is the value of a common frame of reference and a cohesive approach to peacebuilding?
These questions and others give rise to skepticism and calls for caution with respect to the concept.8 Some of the distinctions from other paradigms, such as Transitional Justice or the Responsibility to Protect, are contested.9 Its very essence and added value are open to inquiry, both structurally and conceptually.
In an attempt to address these questions, gaps, and debates, this volume aims to provide a comprehensive multi-disciplinary examination of the foundation, application, and content of jus post bellum. To begin, it is important to define and clarify the terms of the discussion. Although scholars contend that jus post bellum can create more coherence in approaches to peacebuilding, one of the features of current discourse is that there are almost as many conceptions of jus post bellum as scholars, within and across disciplines. It is referred to as a “right way to end a war”10 or as “post-war-justice”11in the just war tradition, and is associated with different paradigms such the “the law of peacebuilding,” constitutional transformation12 or “transformative occupation”13 in legal doctrine. The discussion thus sometimes bears traces of the “Tower of Babel” syndrome.
This volume sets out to explore the contours and impact of this concept, with two caveats:
(1) not to assume the existence or merits of a full-fledged jus post bellum, but to explore its potential meaning, content and risks; and
(2) not to restore the pieces of a “pre-Babelian” mosaic, but to re-think its potential fragments from a contemporary perspective.
The authors in this volume grapple directly with the definition and meaning of jus post bellum, taking the concept further than in previous scholarship. Several distinct conceptions are offered. Building on the historical and philosophical foundations of the concept, Larry May argues that jus post bellum “concerns the moral and legal considerations that pertain to situations where a war or armed conflict has come to an end.”14He links the moral and legal, suggesting that it might be useful to consider jus post bellum as lex ferenda and arguing that, even if its principles are not codified in “black letter law,” it can still be binding from a moral standpoint.15 Mark Evans contends that it is “the account of what justice permits and/or requires in the ending and aftermath of war.”16 He distinguishes two related treatments of this definition: a “legal” treatment and a “moral” treatment, and in his chapter attempts to establish conceptual clarity so that the two areas of scholarship can come into closer dialogue. (p.4)
Dieter Fleck presents a “legal” definition of jus post bellum, arguing that the complexity of post-conflict settings may justify the consideration of jus post bellum as a distinct legal branch, or a “partly independent legal framework.”17 He posits, however, that establishing jus post bellum norms will require both formal and informal approaches, cooperative action, and “creative flexibility.” Indeed, Fleck proposes a number of (non-legal) principles that he suggests should be a part of jus post bellum in addition to international legal rules. Jens Iverson takes this concept further, arguing that jus post bellumis best understood as “by definition primarily a system or body of law.”18 Several other authors take a similar approach, and analyze jus post bellum as the body of legal principles and norms that apply during the transition from conflict to peace.19
However, there are other ways to think about jus post bellum as a concept. Rather than viewing jus post bellum as a set rules that dictate certain outcomes, jus post bellum could be considered from a broader, functional point of view that captures more aspects of an area rich with potential theoretical, legal, and practical scholarship. James Gallen presents the novel suggestion that jus post bellum might most effectively operate as an interpretive framework based on Dworkin’s principle of integrity.20 He suggests that jus post bellum could be used to interpret and evaluate the actions and political decisions of actors in transitional societies to determine to what extent they contribute to restoring civic trust and rule of law. Gallen posits that “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 given transitions and seek to justify this practice by reference to its value goals in a unified or coherent fashion.”21 Taking this dynamic approach to jus post bellum, Gallen argues, would promote coherent post-conflict responses and emphasize the mutually supporting relationship between different frameworks that apply in post-conflict settings, such as Transitional Justice, peacebuilding, security sector reform, and development. Jennifer Easterday presents another view of jus post bellum, taking a broad “inter-public” approach to law in jus post bellum.22 This view considers that the “law” of jus post bellum is comprised of not only the laws and norms stemming from settled bodies of international law, but also of developing normative practices of non-state actors and organizations. In addition to utilizing these areas of law during the transition from conflict to peace, Easterday also considers jus post bellum from a functional perspective, arguing that it creates valuable sites of coordination and discourse in post-conflict situations. Easterday argues that this holistic view of jus post bellum would fill gaps currently found in the law and practice of post-conflict peacebuilding.
However, each of these proposed definitions needs to be explored and further debated. Indeed, the book starts from the premise that “(re-)construction” requires partial “deconstruction.” Each of the core components of the concept, namely, the (p.5) meanings of “jus,” “post,” and “bellum,” must be critically examined and virtually “re-translated” into a modern context in order to have contemporary relevance.
This book pursues several objectives:
(1) to critically investigate the contours, meaning, and critiques of jus post bellum, including its relationship to related paradigms;
(2) to analyze the treatment of the concept across disciplines, and to explore how it connects to causes of armed conflict and strategies and critiques of peacebuilding, including the very definitions of “armed conflict” and “peace”;
(3) to clarify different legal meanings and components of the concept, including its implications for contemporary politics and practice and its relationship to “jus ad bellum” and “jus in bello”;
(4) to highlight dilemmas in relation to the ending of conflict, including the distinction between “conflict” and “post-conflict” (i.e. indicators for the ending of conflicts, “exit” strategies, the relationship to sustainable peace and prevention strategies);
(5) to distil a set of principles in key areas (sovereignty, consent, reconstruction, derogation, environmental protection, accountability) that inform the creation and sustainability of resilient and peaceful post-conflict societies; and
(6) to clarify the function of, need for, and opportunities for developing the study of jus post bellum.
The book is organized along key themes, which aim to set out fundamental aspects of the concept of jus post bellum. The themes addressed are by no means exhaustive, but provide an example of the breadth and depth of scholarship emerging around this concept.
A. Foundation and conceptions of jus post bellum
Part 1 deals with the nature of jus post bellum as a concept in different disciplines. As noted above, jus post bellum is receiving fresh attention in just war theory scholarship, but is treated distinctly across disciplines and receives less attention and support from international law or international relations scholars. It is still unclear whether jus post bellum is a construct, a strand of research, or a sub-discipline of existing paradigms. Jus post bellum also serves both as a conceptual ground for the development and re-thinking of existing or emerging principles and theories (such as international humanitarian law, Transitional Justice, and the Responsibility to Protect). Part 1 explores these foundational issues in order to critically investigate the concept of jus post bellum.
In just war theory, jus post bellum is usually associated with the notion of “justice.” In a legal setting, the concept takes on a different dimension. Currently, there is a spectrum of different propositions. According to a maximalist conception, jus post bellummight be said to form a system or body of norms. It would thus provide a coherent and (p.6) predictable framework, which would be applicable as a minimum standard.23 A different conception of jus post bellum is its qualification as a framework to evaluate action and assess a legitimate ending of conflict, and to establish a public context for debate. Jus post bellum might also be understood in a more functional sense, i.e. as an ordering principle to regulate and coordinate the interplay of different bodies of law, or as a theory or interpretive device that informs a context-specific interpretation of certain normative concepts, such as military necessity or the principle of proportionality.24 Jus post bellum could also be conceived of as a site of discourse that could create more cohesion and consistency amongst peacebuilding initiatives.
These different notions of jus post bellum interact with existing theories and approaches to post-conflict peacebuilding. The concept has met with criticism as unnecessary and warranting caution. Therefore, Part I also clarifies the relationship of jus post bellum to related paradigms and includes chapters on contemporary criticisms and risks of jus post bellum.
The first subsection, Foundation, Concept, and Function, includes chapters from Larry May, Mark Evans, Dieter Fleck, and James Gallen. Larry May connects the current debate to the concepts of sixteenth- and seventeenth-century theorists, developing a concept of justice in jus post bellum that is rooted in traditional humility and modern skepticism towards humanitarian wars and their aftermath. May builds on his earlier work to craft a synthesis of practicality and the virtue of compassion. Mark Evans presents a typology of jus post bellum conceptions ranging from the restricted to the extended. Evans tackles two pressing challenges to jus post bellum: differentiating justice before and after the end of war and the tension between backward-looking and forward-looking goals after conflict. Dieter Fleck emphasizes the differences in contents, purpose, and regulation between jus post bellum and other branches of international law. His idea of a “partly independent legal framework” provides an innovative way to place jus post bellum within a wider context. James Gallen explores, for the first time, the concept of jus post bellum as an interpretive framework. He investigates to what extent such an understanding might avoid fragmentation between related fields in the transition out of armed conflict. Together, these chapters explore what jus post bellum is and analyze the broad foundations and specific functions of the concept.
The second subsection, Jus Post Bellum and Related Concepts, includes chapters from Jens Iverson and Carsten Stahn. Jens Iverson contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each, with a highly particular and concrete emphasis on the differentiated substantive focus, temporal aspects, geographical scope, legal or political nature, historical foundations, and current usage. Iverson clarifies where Transitional Justice can be helpful to the study of jus post bellum, and emphasizes the need for Transitional Justice practitioners to (p.7) refocus their field. Carsten Stahn challenges the assumption that jus post bellum and the Responsibility to Protect are without tension, highlighting both reinforcing and contradicting tendencies. Stahn posits that only with a polycentric vision of the international order can the relationship between the two concepts be properly understood. This subsection builds upon the first subsection, providing clear contrasts with related but distinguishable paradigms.
The third subsection, Jus Post Bellum and Its Discontents, includes chapters from Eric de Brabandere, Roxana Vatanparast, and Fionnuala Ní Aoláin and Dina Haynes. Eric de Brabandere launches a two-pronged attack against jus post bellum, asserting that it is limited both in usefulness and accuracy. De Brabandere’s critical analysis goes beyond definitional quibbling to examine the real problems that may emerge with respect to post-conflict reconstruction as a result of the jus post bellum concept. He agrees that the idea of jus post bellum as an “interpretive framework” has some value. But he questions whether this understanding might be in line with the original idea of the concept. Roxana Vatanparast analyzes the idea and suggested content of jus post bellum through the lens of critical legal theory and international relations scholarship. Vatanparast warns of manipulation and instrumentalization of the legal framework by international actors, as well as the embedding and legitimation of neo-colonial projects through law. Fionnuala Ní Aoláin and Dina Haynes provide a gender perspective on post-conflict frameworks, cautioning against an emphasis on a “universal” citizen and inquiring how jus post bellum might address the needs and challenges of women in conflict and post-conflict settings. This subsection provides the crucial, critical perspective all too often missing in analysis of the concept of jus post bellum.
B. Reconceptualizing “bellum” and “pax”
A further line of inquiry addressed in the volume relates to the interplay between jus post bellum, jus ad bellum, jus in bello, and peace. The relationship of jus post bellumto traditional international humanitarian law has been discussed in modern just war theory, but remains underexplored conceptually and legally. Thus, Part 2 re-thinks the concept of “bellum,” in particular its relevance to internal armed conflicts. It further explores the potential impact of jus post bellum on conduct and laws ad bellum or in bello. It also sheds closer light on the relationship of jus post bellum to the concept of “peace.” By thus partially “deconstructing” the notions of bellum and pax, this section aims to re-translate these ideas into the modern context as they relate to jus post bellum.
This section includes chapters from Christine Bell, Inger Österdahl, Gregory Fox, Kristen Boon, and Astri Suhrke. Christine Bell inquires whether a new jus post bellumregime operating across different types of conflict is possible and desirable. If not, she asks, how should we best situate and respond to contemporary developments in international law relating to terminating intra-state conflict? Bell’s study of the legal creation of peace draws upon extensive analysis of the actual practice of peace negotiations and agreements to understand the importance of the chosen goals of international law in the contemporary globalized context. She argues that while the discussion of jus post bellum provides a useful way to explore gaps in how international law deals (p.8) with peace settlements and the implementation issues they raise, it is neither possible nor desirable to develop emerging legal innovations into a fully-fledged legal regime. Inger Österdahl argues that jus post bellum is necessary in order to cope constructively with the consequences of armed conflict, and that the introduction of a systematic and comprehensive jus post bellum will challenge the traditional conceptual categories relating to the law on the use of force. She suggests that it might move the focus away from the beginning of a conflict towards the middle and end of armed conflict. Moreover, Österdahl contends, jus post bellum will create a more human-centered law of armed conflict.
Gregory Fox illustrates how jus post bellum could either be limited by a traditional state-centric focus or could pose a controversial constraint on both sub-state and international organizations, including the United Nations Security Council. This contribution demonstrates in a novel way the potentially unexpected power of jus post bellum. Kristen Boon focuses on the differences between jus post bellum in international and non-international armed conflict. She suggests that in the context of non-international armed conflicts, jus post bellum should incorporate the idea of “bounded discretion” and should show deference to local authorities in certain areas. Astri Suhrke’s empirical analysis of different types of post-war “peaces” negates the assumption that there is a homogenous or even predominant post-war situation. Suhrke’s chapter provides an incisive political science perspective that should fundamentally change the way scholars and practitioners approach jus post bellum. This section helps clarify the different ways jus post bellum can influence an analysis of the law of armed conflict and how it could potentially change the field.
C. Dilemmas of the “Post”
The third part of the book deals with different dimensions of the conception and management of the “post” in existing scholarship and practice. It examines three crucial aspects of the “post” in greater detail: (i) the validity of the “conflict”/“post-conflict” distinction, (ii) its role in defining the temporal scope of application of jus post bellum, as well as (iii) techniques and strategies used to deal with the uncertainties of the “post” in transitions. This section highlights problems in relation to the ending of conflict, including indicators for the end of modern conflicts, exit strategies, and institutional responses to developing sustainable peace “post” conflict.
The first subsection, Dilemmas of Classification, includes chapters by Jann Kleffner, Rogier Bartels, and Martin Wählisch. Jann Kleffner focuses on the temporal dimension of jus post bellum regarding where, how, and whether to draw the dividing line between jus post bellum and the law of peace. Kleffner emphasizes the need for a functional approach that allows for temporal overlap with other areas of law. He argues that the alternative would perpetuate the division of public international law into the law of armed conflict and the law of peace—which he contends is inappropriate for jus post bellum, which by its nature transcends this division. Rogier Bartels focuses precisely on the transition from jus in bello to jus post bellum in the context of non-international armed conflict. Surprisingly, the question of how to determine when non-international armed conflicts end is still unresolved, but, Bartels argues, remains critical to (p.9) determining when jus post bellum applies and what it means on the ground. Using jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY), he proposes using a case-by-case application of factors and indicators about the organization and intensity required to find the existence of a non-international armed conflict to determine the end of such conflicts. Martin Wählisch scrutinizes indicators set by international human rights institutions for characterizing the necessity of suspended human rights provisions in post-conflict phases. He looks at both the beginning and the end of the temporal scope of jus post bellum, proposing a list of indicators that suggest the beginning and end of jus post bellum. Together, these chapters ask hard questions about classifying the temporal limits of armed conflict and peace and analyze the implications for jus post bellum.
The second subsection, Institutional Dilemmas and Strategies, explores institutional and practical problems that arise when attempting to make temporal distinctions related to the concept of “post” bellum. It includes chapters by Dominik Zaum and Freya Baetens. Dominik Zaum focuses on the challenges of ending post-conflict transitional administrations and potential lessons for institutional approaches in the operationalization of jus post bellum. He looks at the influence of jus post bellum concerns on exit mechanisms and policies. Zaum suggests that jus post bellum norms have affected key exit practices, sometimes with unintended consequences. However, he concludes that jus post bellum does not provide a general framework for exit, which tends to focus on technical issues that, at their core, are deeply political. Freya Baetens discusses the UN Peacebuilding Commission, which has been created to facilitate transitions from conflict to peace. She argues that it could fill an institutional gap in the coordination of post-conflict peacebuilding efforts. However, Baetens contends, the Peacebuilding Commission has missed an opportunity to foster important jus post bellum norms, including local ownership, mutual accountability, and sustainable development. These chapters discuss the institutional realities and challenges of jus post bellum.
D. The “Jus” in Jus Post Bellum
Part 4 examines the meaning of “jus” in jus post bellum. It treats different notions of the “jus,” including its goals, “functional” meaning, and its relationship to norms and principles. Then, it seeks to define contours of a “jus,” drawing on disparate bodies and sources of international law such as peace agreements, treaty law, self-determination, rules governing the status of foreign armed forces in post-conflict situations, environmental law, and amnesty law. This analysis clarifies how the concept of jus post bellum influences the treatment of core principles of international law and international relations in situations of transition: for example, sovereignty, constitutionalism, gender, consent, democracy, environmental protection, and accountability. This section attempts to distil a set of principles that inform the creation and sustainability of resilient and peaceful post-conflict societies.
Part 4 includes chapters by Jennifer Easterday, Dov Jacobs, Yaël Ronen, Matthew Saul, Aurel Sari, Cymie Payne, and Frédéric Mégret. Jennifer Easterday suggests that jus post bellum should be considered as a broad holistic concept that provides a normative and interpretive framework for post-conflict transitions to peace as well as a site (p.10) of coordination and a site of discourse. She argues that peace agreements and the lex pacificatoria can inform the jus post bellum paradigm and provides an empirical review of peace agreements to distil core norms and principles that are important to jus post bellum. Dov Jacobs emphasizes the importance of sovereignty, asserting that one of the main goals of jus post bellum should be to relegitimize sovereignty rather than bypassit. Jacobs proposes an innovative inversion of Scelle’s dualité fonctionnelle by discussing how international institutions should be conceptually analyzed as organs of the national legal order, rather than the opposite. Yaël Ronen explores the idea of “jus post-occupation,” exploring the difficulties of post-occupation obligations and the obligations of former occupants. She suggests that post-occupation law should address both individual and collective interests. Matthew Saul asks whether there is a role for jus post bellum in creating post-conflict governments. Saul focuses on the international law of political participation, which specifies an electoral process as a means for public participation in governance, and questions whether it is adequately suited to deal with the complexities of post-conflict settings. He asserts that this law must balance two competing interests: the importance of context-specific nature of the approach taken and the importance of accountability.
Aurel Sari, Cymie Payne, and Frédéric Mégret explore specific questions of jus post bellum norms. Sari addresses the normative foundations of the legal status of foreign armed forces deployed in post-conflict environments. Sari derives principles of general application from various sources of international law regarding the status of foreign armed forces, and compares them with jus post bellum priorities. He then examines consensual and non-consensual presence of foreign troops and the balance between the competing legal interests of sending and host states. Sari contends that jus post bellumshould be conceived of as a process of transition rather than simply a set of norms, and that this process should be flexible and context-specific in order to adequately address the variation in legal and factual circumstances of different post-conflict scenarios. Payne considers the norm of environmental integrity and queries the relationship between this norm and jus post bellum. She argues that in order to realize environmental integrity, jus post bellum must incorporate reparations, collective concern, and reconstruction. Mégret focuses on justifications for insurgent amnesties and asks whether the aim of reconciliation is a clear enough motive to extend amnesties to all insurgents. Noting amnesties as a challenge for jus post bellum, Mégret argues for a principled approach to amnesties for insurgents. This approach should accept that insurgencies can be legitimate, Mégret contends, particularly when they are against a regime engaged in massive abuses of human rights or violations of international law. Part 4 makes concrete the all-too-often abstract discussions of the substance of “jus” in jus post bellum. This section further offers a new perspective on the “jus” by exploring it from a legal rather than moral or accountability-centered perspective.
Together, these chapters offer a comprehensive view of what could be termed the “spectrum” of jus post bellum. Authors present maximalist and minimalist conceptions of jus post bellum. They describe jus post bellum theory and practice as well as general (p.11) and specific applications of the concept. Some authors focus on the lex lata (what the law is) while others focus on the lex ferenda (what the law should be) with relation to post-conflict situations.
It becomes clear that jus post bellum cannot simply be modeled after jus ad bellumor jus in bello. It is a distinct concept, with its own functions, form, and content. It is still seeking its space in just war theory and international law. The most limited common denominator is that it serves as an analytical framework to guide discussion on fundamental challenges of international society. It opens new debates on the interplay between law and morality, the use of specific norms, standards, and practices of post-conflict conduct and a range of cross-cutting issues, such as the importance of inclusion, local ownership, context-specific approaches, and the critical need to address gender-sensitive issues and women’s perspectives in the study and application of jus post bellum.
The volume’s coverage of the topic is both broad and deep, but gaps and silences remain, as do opportunities and risks. Some of them are addressed separately in the Epilogue. The chapters below demonstrate the complexity of the issues raised by jus post bellum and different approaches toward fundamental elements of the concept. While there is some agreement on rationales and blind spots, voices differ as to the direction in which jus post bellum should develop. In the context of just war theory, significant focus has been placed on the idea of “justice after war.” This focus on “justice” serves also as a natural starting point in the context of international law. But the contributions in this volume indicate that the tides may be shifting. With the growing impact of law in peacebuilding and greater reception of the concept in peace studies, the nexus to “sustainable peace” may gain greater weight—not necessarily in the form of the classical “liberal peace” idea, but in a novel, pluralistic way. Jus post bellum might serve as an instrument to overcome some of the existing normative and disciplinary biases in the international order. One of its strengths is that it creates the space to re-think entrenched dichotomies—for example, the interplay between security and human rights, law and politics, and peace and justice. What follows in this volume hopefully provides a useful “map” of the conceptual foundations for the onward journey. (p.12)
(1) Brian Orend, “Jus Post Bellum” (2000) 31 Journal of Social Philosophy 117.
(2) Michael Walzer, Just and Unjust Wars (4th edn, Basic Books 2006).
(3) Larry May, After War Ends (Cambridge University Press 2012).
(4) Adam Roberts, “The End of Occupation: Iraq 2004” (2005) 1 International and Comparative Law Quarterly 27.
(5) Nigel White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law (Edward Elgar 2013).
(6) Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford University Press 2008).
(7) Vincent Chetail, “Introduction” in Vincent Chetail (ed.), Post-Conflict Peacebuilding: A Lexicon (Oxford University Press 2009).
(8) See e.g. Eric de Brabandere, “The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as a Legal Concept” (2010) 43 Vanderbilt Journal of Transnational Law 119; Robert Cryer, “Law and The Jus Post Bellum: Counseling Caution” in Larry May and Andrew Forcehimes (eds), Morality, Jus Post Bellum, and International Law (Cambridge University Press 2012).
(9) “Jus post bellum” has overlaps with R2P, Transitional Justice and the Law of Peace. It may to some extent draw insights from the “global administrative law” debate. It is sometimes even argued that jus post bellum forms part of these concepts (e.g. “transitional justice”). But there are obvious differences. Let us take R2P, for instance. R2P defines a general behavioral norm, such as a communitarian duty to assist or even to rebuild. “Jus post bellum,” by contrast, may provide a framework for its operationalization through “hard law,” “soft law,” and practice, and its evaluation and “judgment.” In some cases, a pattern of conduct, such as continued international presence, may be warranted by R2P, but sanctioned under jus post bellumdue to lack of consent.
(10) Richard M. O’Meara, “Jus Post Bellum: Reflections on the Right Way to End a War” (2011) 6 Journal on Terrorism and Security Analysis 35.
(12) Nehal Bhuta, “New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation” (2012) 60 University of Toronto Law Journal 799
(22) ch. 20Liliana Lyra Jubilut, “Towards a New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvement of Post-Conflict Efforts and Accountability” (2011) 20 Minnesota Journal of International Law 26, 57.
(23) This conception is the most contested one. It is subject to some of the systemic criticisms that have arisen in the debate as to whether on international law is “law.” What are its foundational rules and principles? Can it constitute a system, if it borrows norms from other bodies of law? Is it precise enough in terms of its scope of application? Can it be a system if its norms are not binding or not enforced?
(24) It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to preclude the goal of sustainable peace through the conduct of warfare.