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Jus Post BellumMapping the Normative Foundations$

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson

Print publication date: 2014

Print ISBN-13: 9780199685899

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685899.001.0001

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Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum

Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum

Outlining the Matrix of Definitions in Comparative Perspective

Chapter:
5 Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum
Source:
Jus Post Bellum
Author(s):

Jens Iverson

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685899.003.0006

Abstract and Keywords

This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that have evolved and will continue to change. The chapter begins with a review of Hersch Lauterpacht’s concept of the Grotian Tradition, and how it relates to Transitional Justice and jus post bellum. Jus post bellum and Transitional Justice are then contrasted and analyzed with respect to their varied legal or political emphases, their content, their geographical scope, their contrasting historical foundations, and their current usage. The chapter seeks to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Additionally, the author hopes that the concept of jus post bellum may help those interested in Transitional Justice to refocus and strengthen their field.

Keywords:   jus post bellum, transitional justice, Grotian tradition, role of law, substantive law, procedural law, geographical scope, history of law, just war, transitions to democracy

I. Introduction

A. The surprise of the new

Ninety years ago, even amongst the invisible college of international law scholars, the phrases “Transitional Justice” and “jus post bellum1 would have been met with uncertainty. The terms were unknown. Perhaps more surprisingly, jus post bellum’s sister terms “jus ad bellum” and “jus in bello,” now enshrined as central and seemingly immovable pillars of the law of armed conflict, would also have prompted few knowing (p.81) nods of recognition, only blank stares.2 Academic neoterisms—innovations in language such as a new word or term—can tell us something about the historical moment of their origin, and the tradition within which they emerge. The focus on jus ad bellumand jus in bello after the horrors of the First World War is hardly surprising. The concept of Transitional Justice emerged organically from the intense focus on transitions to democracy from the 1970s through the 1990s. The post-Cold War questions of transformative occupation, peacebuilding, and international territorial administration set the frame for jus post bellum.

It is impossible to tell whether Transitional Justice and jus post bellum will seize the collective imagination of those who concern themselves with international law in an enduring manner, or whether these concepts will quickly fade. The longevity of a term depends largely on how that term may be used in unknowable, future contexts. But it also may depend at least in part on the internal coherence of the body of concepts referenced by the term, and whether this coherence is maintained over time by its practitioners and advocates. Those invested in the success of a philosophy underlying a term have the most to gain from an effort to closely analyze the meanings of a term, and where necessary draw distinctions between related concepts.

B. Chapter structure

This chapter will proceed as follows. In Part II, Hersch Lauterpacht’s concept of the Grotian Tradition is described, and how that tradition relates to Transitional Justice and jus post bellum is explained. Part III briefly explores the definitions and qualities of each term, serving to introduce many of the contrasts explored in Parts IV through VIII. In Part IV, the role that law plays with each concept is examined. Part V analyzes the substantive focus of each concept, providing an initial contrast, introducing the tools of Transitional Justice, and plotting the content of jus post bellum along the axis of norms that are more substantive or more procedural in nature, and providing a concluding contrast. Part VI examines the possibilities of varied geographical scope of each concept. Part VII focuses on the historical foundations of each term. Part VIII takes a closer look at current usage. The chapter concludes in Part IX by providing analysis of what these contrasts mean for scholars, activists, and practitioners going forward.

II. The Grotian Tradition

Both Transitional Justice and jus post bellum are products not only of the decades in which they emerged, but also part of what Sir Hersch Lauterpacht identified as “the Grotian tradition.”3 Both the specific historical moments and the wider tradition are examined below. (p.82)

In 1933, Hersch Lauterpacht famously described “The Function of Law in the International Community.” This work, which Martti Koskenniemi has described as the most important book in English in the twentieth century,4 concerned itself, inter alia, with whether international law was a comprehensive system, capable of settling disputes brought to international judicial fora. Lauterpacht forcefully argued for a conception of international law as a complete system, with the function and duty of international legal practitioners to settle disputes. For Lauterpacht, there existed a prohibition of judicial non liquet (in essence, a ruling that there was no law to apply to determine a dispute), admitting no exception.5 In the same way that a court, faced with a claim of property ownership, would have to make a determination as to that property claim regardless of the uncertainty surrounding the claim, the history of international judicial settlement provided “continuous proof”6 of the capacity of international law to address “so-called gaps.”7

Lauterpacht’s argument is in contrast with, for example, Hans Morgenthau, from the perspective of international relations, with his contrast between political “tensions” not amenable to legal resolution and “disputes” that were amenable to legal resolution.8Lauterpacht’s perspective is also in contrast with the “Vienna School” of Hans Kelsen who essentially advocated a positivist model that limited the role of law in the international community.9 Lauterpacht’s work was both a conception of what international law was and a project to define what law should do—to extend the process of dispute settlement through law. The issue of whether gaps exist in the fabric of international law, and what approach should be taken if apparent lacunae are highlighted, remains an enduring problem.

What was Lauterpacht’s goal in enshrining these goals as part of the Grotian tradition? The article The Grotian Tradition in International Law seeks to selectively praise Hugo Grotius,10 not to bury him—it suggests that despite the flaws in argument and substance of De jure belli ac pacis (1625), Grotius’ enduring fame and influence is deserved because of the tradition he established. The tradition, as framed by Lauterpacht, appears to be a series of goals for international law. Unsurprisingly, these goals appear to be largely shared by Lauterpacht, although Lauterpacht may not have used the term “goals” but rather insisted that they were an accurate description of international law. Lauterpacht’s insistence on a complete system of international law, one that would broach no judicial non liquet, is strengthened by the idea that there is a tradition insisting on The Subjection of the Totality of International Relations to the Rule of Law 11 (p.83) and The Rejection of “Reason of State.” 12 Should there have been areas of International Relations to which no laws could apply, perhaps due to an assertion of Raison d’État,the system of international law would clearly be incomplete, and rulings based on a finding of non liquet would clearly be expected.

In a sense, both Transitional Justice and jus post bellum as intellectual projects represent attempts to fill apparent lacunae. Transitional Justice practitioners, as a general rule, are committed to the “fight against impunity.” This impunity is seen as an unwanted gap. Transitional Justice seeks primarily to respond to the real-world gap in the universality of human rights as applied—a universality that is fundamental to the project of human rights. These rights are not derived from an individual’s status vis-à-vis a state but solely due to being human, as a result of shared humanity. An apparent gap in the universality of international human rights protections caused by a change in regime (perhaps with amnesties for previous regime officials) or by the mere existence of unpunished systematic or widespread human rights abuses may cry out to be addressed by Transitional Justice practitioners. Additionally, uncovering and establishing the truth of past human rights abuses may be seen as filling a historical lacuna, which itself may serve as a form of reparation for victims. The idea that there should always be a purposeful (legal and otherwise) response to human rights abuses is very much in line with Lauterpacht’s vision of the Grotian Tradition.

Jus post bellum, on its face, appears to be responding to the need to complete the temporal story of the law of armed conflict—with jus ad bellum governing the beginning of armed conflict, just in bello governing the conflict itself, and jus post bellum governing its aftermath. While there is certainly power behind this simple depiction, a deeper understanding of the history of international law as it applies to law and peace reveals a more fundamental gap that jus post bellum can help to fill. Filling these lacunae is best understood with reference to what Lauterpacht called “The Grotian Tradition in International Law.”13 Lauterpacht identifies several features of the Grotian tradition that are potentially pertinent. He suggests that the Grotian tradition includes The Subjection of the Totality of International Relations to the Rule of Law;14 The Rejection of “Reason of State”;15 The Distinction between Just and Unjust Wars;16 The Fundamental Rights and Freedoms of the Individual;17 and The Idea of Peace.18 By The Idea of Peace, Lauterpacht means Grotius’s strong preference for peace, and the lack of praise for war as somehow beneficial or strengthening in character.19 In particular, The Subjection of the Totality of International Relations to the Rule of Law and The Rejection of “Reason of State”; is relevant to the creation of jus ad bellum, jus in bello, and eventually jus post bellum. These themes certainly echo Lauterpacht’s split from his teacher Hans Kelsen.20 (p.84)

To use the term “jus post bellum” is itself to make an assertion, namely that a set of laws exists that applies to the transition to peace. Because the term is a recent arrival in contemporary legal discourse (see Part VII below), the claim may seem controversial. One might ask how a body of law could have been constructed without, until recently, a name. Further, one might ask whether those using the term are really advocating restraints upon the peacemakers and erecting barriers to peace.21 After all, if this chapter claims that jus post bellum is a continuance and completion of the Grotian Tradition, and embedded in the Grotian Tradition is a strong preference for peace, then how can barriers to peace be appropriate?

With respect to the first concern about the implausibility of a heretofore “nameless” body of law, the history of the terms jus ad bellum and jus in bello stand as an answer. The concerns and laws of jus post bellum, like those of jus ad bellum and jus in bello, predate the terms themselves. For example, Brian Orend argues that the concept of jus post bellum should be credited to Immanuel Kant.22 Regardless of its provenance, it is important to note the relative humility of the concept. The term “jus post bellum” does not seek to displace jus ad bellum or jus in bello, but rather to complement them. It does not seek to supplant the separate frameworks of humanitarian law, human rights law, or international criminal law,23 and indeed to challenge the entire notion of public international law as traditionally understood,24 but simply to integrate the law applicable to a particular phenomenon, the transition to a sustainable peace, into a more coherent whole.

With respect to the second concern regarding the possible drawbacks of clarifying and even extending the law applicable to the transition to a sustainable peace, one need only look to the atrocities that have historically followed military victory to understand the prima facie need for jus post bellum. No longer is it acceptable and commonplace to exterminate or enslave the defeated population. The prohibition on the annexation of territory is central not only in determining the legality of particular post-conflict settlement, but also in underpinning the entire order of stable and pacific interstate relations. An abhorrence of regulation and insistence on the “freedom” from law of those involved in the transition to a sustainable peace is effectively an application of the rationale of Raison d’État to the ending of conflict and the reestablishment of peace—to assert that a dispute regarding the legality of actions taken in the transition to a sustainable peace would be met with a judicial non liquet. This is not to say that there is a tight constraint in all circumstance or no role for discretion. There are many choices between equally legal options during the transition to sustainable peace. Regardless of one’s view as to the function of law in the international community, a vision of the reestablishment of peace as a law-free or law-poor zone is likely to result in an impoverished peace that does not tend to acceptably resolve the problems underlying the conflict or lay the foundation for a robust, positive peace. (p.85)

III. Basic Definitions

A. Transitional Justice

In Transitional Justice Genealogy,25 Ruti Teitel begins with a definition, stating, “Transitional justice can be defined as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”26 This definition, adopted very carefully in a self-reflective article by the individual often credited with coining the term, is a good place to start.

The substantive emphasis of Transitional Justice is on justice for human rights violations.27 Temporally, the emphasis is on subjecting the acts that occurred during the predecessor regime to a toolbox of responses within the time period of the successor regime. The term contains an aspirational element—that a transition toward justice is possible in line with the political change in the wake of a change in regime. There is no assumption of armed conflict, nor is there a denial of the possibility of armed conflict. Armed conflict has only a potential, secondary importance in Transitional Justice—an importance derived not from the effects of armed conflict, nor the thing itself. These potential effects, human rights violations and regime change, may each occur with or without armed conflict. The goals of Transitional Justice are fundamentally tied to the aspiration of transition, both toward justice for past violations and toward a cementing of a new political order that will prevent the old order, with its attendant human rights violations, from returning.

B. Jus post bellum

There is, as yet, no authoritative definition for jus post bellum, although many have been proffered. For the purposes of this chapter, for reasons that are explained below,28 the term jus post bellum is defined as the body of legal norms that apply to the entire process of the transition from armed conflict to a just and sustainable peace.29

Jus post bellum must be understood in the context of its sister terms, jus ad bellum and jus in bello. None of these terms make sense without armed conflict. They are concerned with the use of armed force as a matter of primary, central importance. (p.86) Collectively, they seek to describe the constraints and rights regarding whether armed force may be used at all, the constraints and rights related to the use of armed force during armed conflict (how it may be used), and the constraints and rights related to the transition from armed conflict to a sustainable peace.

The substantive emphasis of jus post bellum is broader than human rights violations. It also clearly includes, inter alia, violations of the laws of armed conflict, the rights and privileges that spring from the laws of armed conflict, 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—laws that directly or through interpretation regulate and enable the transition to a just and sustainable peace.

IV. Legal Contrast

Jus post bellum, like jus gentium or jus civile, is best understood as by definition primarily a system or body of law. The term “jus,” used in this context, dates back to Roman law. A jus is “one particular system or body of particular law.”30 While jus post bellum in practice always exists in a particular political context, the thing in itself is fundamentally legal in nature, not political. It is a primarily legal concept (of the existence of a body of law) with political implications. Jus post bellum can also legitimately be used to reference the aspects of just war theory that apply to the transition from armed conflict to peace that are philosophical in nature, as is the case with its sister terms jus ad bellum and jus in bello.

Transitional Justice weds a legal idea—human rights—to the political change that makes human rights enforcement possible and necessary. Transitional Justice is tied to the change in regime and a change in enforcement. For Transitional Justice to work, it is necessary to create a distinction between the old culture of impunity and the new norms of justice. Transitional Justice is political in the sense of bringing a full political awareness to the project of securing political-legal system that respects and enforces human rights norms. The International Center for Transitional Justice takes pains to emphasize that Transitional Justice “is not a ‘special’ kind of justice, but an approach to achieving justice in times of transition from conflict and/or state repression.”31

Contrasting jus post bellum and Transitional Justice with respect to how political or legal in nature each concept is may suggest—contra Lauterpacht—that some actions, from a political perspective, are impossible to call legal or illegal, but are instead out of the realm of law and into the realm of politics, in the manner espoused by Morgenthau and Kelsen. This suggestion is not the intent of the author. Identifying the political nature or political implications of a concept should not imply that any act cannot be (p.87) analyzed from a legal perspective. Transitional Justice practitioners are rooted in a specific legal regime—International Human Rights Law.

One concept that deserves mention in this context is the idea of “meta-conflict,”32 or “the conflict about what the conflict is about.” Different narrative frames to understand an armed conflict will often be political in nature. This has implications for the politicization of jus post bellum. Because the true causes of the conflict are almost inevitably contested, the steps that need to be taken to resolve those causes and create a sustainable peace are also likely to be contested.

V. Contrasting the Content of Transitional Justice and Jus Post Bellum

A. General contrast

The basic definition of Transitional Justice provided in the Basic Definitions section above is not the only definition worth considering. Again, in Transitional Justice Genealogy,33 Teitel states, “Transitional justice can be defined as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”34 In contrast, the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2004) 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. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.35

Similarly, the stocktaking report of the same name Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2011) describes Transitional Justice as follows:

Transitional justice initiatives promote accountability, reinforce respect for human rights and are critical to fostering the strong levels of civic trust required to bolster rule of law reform, economic development and democratic governance. Transitional justice initiatives may encompass both judicial and non-judicial mechanisms, including individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals.36

Transitional Justice practitioners may know about and concern themselves with issues outside of human rights violations, such as violations of the laws of armed (p.88) conflict, the rights and privileges that spring from the laws of armed conflict, state responsibility outside of the realm of human rights, recognition of states and governments, laws and norms applicable to peace treaties and peace agreements, occupation, and particularly post-conflict peace building. That said, these subjects are not the fundamental concern of Transitional Justice properly speaking. They are the fundamental concern of jus post bellum.

While jus post bellum is substantively broader than Transitional Justice in many respects, jus post bellum is also clearly inapplicable in certain 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. (The 1982 conflict in the Falkland/Malvinas Islands might provide such an example, the involvement of two 17-year-old armed service members notwithstanding.)37 Additionally, armed conflicts occur without regime change. In these instances, Transitional Justice would tend not to apply, but jus post bellum would.

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. In addition to that negative goal of reducing the effects of unfettered armed force, practitioners of jus post bellum generally seek to build a “positive peace.”38 This builds upon Lauterpacht’s idea that part of the Grotian Tradition is The Idea of Peace.39 Again, by The Idea of Peace, Lauterpacht is invoking Grotius’s strong preference for peace, and the lack of praise for war as somehow beneficial or strengthening in character.40Sustainable peace is a central aspirational norm of jus post bellum, following a long but not uncontested tradition in international law.

This is not to say that human rights are not central to jus post bellum—they are. As ably demonstrated in such works as Transitional Justice in the Twenty-first Century: Beyond Truth Versus Justice 41 and Selling Justice Short: Why Accountability Matters for Peace 42the 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. (p.89)

B. Substance of Transitional Justice

Transitional Justice practitioners are interested in the application of a collection of responses to human rights violations (sometimes referred to as a “toolbox” or “package” of mechanisms)43 including criminal prosecutions, truth commissions, reparations programs, gender justice programs, security sector reform, memorialization,44 vetting (also known as “lustration,” “screening,” “administrative justice,” and “purging”)45 and education.46 These responses will also likely be of interest to scholars and practitioners of jus post bellum, particularly during the period after the cessation of armed conflict. The emphasis, however, may be different. Those coming from the Transitional Justice perspective may share the natural primary concern of responding to human rights violations, while those coming from the tradition of emphasizing the importance of transitioning to a stable peace may highlight other areas, albeit often through responding to human rights violations. The content of what is called Transitional Justice has expanded as practitioners have looked for pragmatic problems to the difficult challenges inherent in the aftermath of human rights violations by a previous regime. The question of what qualifies as “Transitional Justice” is a pragmatic, and in some ways inherently political question, as it depends at least in part on what is considered useful in making a successful political transition.

It is not particularly useful to apply the term “Transitional Justice” to efforts that use the tools or approaches used in Transitional Justice but which bear no relationship to a distinct transition in political regime. If, at the present moment, there was a truth commission or memorialization effort for the deaths of more than 12,000 prisoners of war housed at the Confederate Andersonville Prisoner of War Camp during the US Civil War, it is hard to see how it is helpful to call these “Transitional Justice,” even in light of the political changes that occurred as a result of the armed conflict. A truth commission or memorial to victims does not necessarily imply a “transition” in the sense that is normally implicated by the term “Transitional Justice.” Applying the term to the post-conflict trial and execution of Henry Wirz, commander of the Andersonville Prison, as well as the 1908 monument to Wirz by the United Daughters of the Confederacy and continuing memorialization47 would also constitute an unjustified enlargement of the term “Transitional Justice.” While both the trial and the monument may have had (conflicting) political implications or intents, the trial was hardly looking toward any sort of regime change in the US federal government, and the misplaced valorization of Wirz has more to do with denial of Confederate crimes than establishment of accountability for human rights violation of a previous regime. While some may feel that stretching (p.90) the term is somehow innovative or exciting, overstretching the term tends to lead to the term lacking specific meaning and force. As Seneca the Younger noted: Nusquam est qui ubique est (roughly translated, “Nowhere is the one who is everywhere” or “to be everywhere is to be nowhere”).48

To take perhaps a more controversial example, it seems unhelpful to use the term “Transitional Justice” in application to the serial truth commissions in Uganda, including the Commission of Inquiry into the Disappearances of People in Uganda since 25 January 1971 established by Idi Amin Dada and the 1986 Commission of Inquiry into Violations of Human Rights.49 While these Truth Commissions, along with various efforts at memorialization and even the International Crimes Division within the High Court of Uganda technically fit with the type of broad definition such as “a response to systematic or widespread violations of human rights”50 they should not be considered to be Transitional Justice mechanisms, properly conceived. These are not the type of “conception of justice associated with periods of political change”51 traditionally and properly associated with the term Transitional Justice. Discussing these institutions as “Transitional Justice” should at a minimum be done critically and cautiously, noting that they are not clearly part of a transition to a more democratic and accountable regime. They are, in each instance, a one-sided exercise of a regime not clearly moving toward ongoing accountability for their own human rights abuses. If the term “Transitional Justice” simply means an institutionalized allegation of abuse by the losing party in a conflict, even an allegation by a regime not in the process of transitioning to a superior approach toward human rights, it is unclear why “Transitional Justice” should retain its widespread support, or why the term would endure.

This is not to say that Transitional Justice efforts have to be without flaw or criticism to merit the title of “Transitional Justice.” As a phenomenon associated with political change, carried out by fallible humans, any instance of Transitional Justice will inevitably be flawed. Rather, calling an effort “Transitional Justice” should necessarily be an assertion that the substance of that effort contains the aspiration of transition to a new regime of accountability for human rights abuses.

Noémie Turgis in What is Transitional Justice? begins and ends with a warning regarding broadening the scope of transitional justice.52 As she puts it:

The risk of broadening the meaning of the concept is to dilute it and turning it into something meaningless. [...] The core element of transitional justice is here: offering a “toolbox” filled with elements designed to deal with the violations of human rights from a predecessor regime to form the basis of an order to prevent their reoccurrence.53

This is well put, although some might object to the “toolbox” metaphor given that it may tend to reduce complex problems to simpler plumbing analogues. The content (p.91) of Transitional Justice is rooted in a transformative response to a predecessor regime’s human rights violations in order to prevent further violations.

C. Plotting the content of jus post bellum: procedural and substantive law in the transition from armed conflict to peace

A full mapping of the content of jus post bellum is beyond the scope of this chapter, which focuses on the contrast between Transitional Justice and jus post bellum. What follows must, of necessity, resemble a sketched map more than an aerial photo. Nonetheless, a short and general guide should be useful.

One useful but under-appreciated tool when thinking about the content of jus post bellum is to highlight the procedural and substantive aspects of particular legal issues within jus post bellum as a system of law. This section will discuss the content of jus post bellum in three parts: legal norms that are more substantive in nature, legal norms that are more procedural in nature, and legal norms that are a mix of substantive and procedural norms. Plotting the different norms along this spectrum is not meant to be an absolute or precise exercise, but rather a helpful and somewhat systematic way to connect different issues and further the idea that these issues are related, and in fact constitute a coherent body of law.

More substantive in nature

Contemporary international law specifically outlaws many acts that may be (and historically have been) carried out during the transition from armed conflict to peace. Christine Bell provides a helpful table in Peace Agreements and Human Rights 54 with respect to “political strategies for dealing with minorities.” The table can usefully be generalized with application to the international law prescription for a variety of acts that are regulated by jus post bellum.

A party to the conflict may frame the conflict as caused by the existence or power of another group, and wish to act upon that second group in prohibited ways. For instance, a party to the conflict may adopt a strategy of eliminating the second group, through genocide, expulsion, or voluntary expatriation. The first two are specifically outlawed under international law,55 the third is unclear but likely suspect if attached to the goal of elimination, as the “voluntary” nature will be in doubt in light of the potential crime of persecution. If the strategy of domination is adopted, the likely method of implementing of that strategy discrimination against a minority is specifically outlawed. This, of course, includes the prohibition of slavery.

A party to the conflict may also frame the cause of the conflict as caused by the relationship of another group to others, and choose to act upon that second group in ways that are regulated but not necessarily prohibited by international law. If the strategy of assimilation is adopted, the increased recognition of minority rights in international (p.92) law56 may constrain any attempt to eliminate communal differences. Separate treatment may depend upon the particular provisions and the balance between individual rights and collective rights, including whether the treatment is more in the form of recognition and accommodation for vulnerable minorities or discrimination against minority groups.57 Many conflicts are framed in terms of self-determination, whether it is a demand for internal autonomy or outright secession. The question of the legality of self-determination is inextricably tied to the rights of territorial integrity and the rights of minorities and individuals within the new framework.58

All of the substantive legal norms listed thus far are binding directly as part of non-derogable international human rights regimes that apply in times of peace, armed conflict, and periods that could be described as status mixtus,59 but may have special and distinctive characteristics during the transition from armed conflict to peace. Most particularly, these norms bind those crafting peace agreements and those who enjoy transitional governmental authority. Bell suggests that international law applying to peace processes (including the crafting of peace agreements) should reflect the distinctive nature of these acts, including: a distinctive self-determination role bound to questions of state legitimacy and human rights protections; hybrid international/domestic legal status based on a distinctive mix of state and non-state categories; obligations that may need to be interpreted from both a treaty or contract law framework and a constitutional law framework; and distinctive types of third-party delegation.60

Certain areas of jus ad bellum and jus in bello are also heavily implicated in a body of law governing the transition from armed conflict to peace. The prohibition of annexation as the result of armed conflict is tied to the prohibition of acts of aggression, a clear jus ad bellum concern. Acts of aggression also raise the question of response in the transition to peace, including the question of reparations—an issue that implicates the law of state responsibility. United Nations Security Council resolutions under Chapter VII authority frequently provide specific binding law that applies to particular transitions from armed conflict to peace.61

All of the limits of the law of armed conflict applying to belligerent occupation under the law of armed conflict are traditionally classified as jus in bello (including (p.93) Geneva Convention IV, Additional Protocol I, and Article 42 of the 1907 Hague Regulations62). The reality and legal restraints of “transformative occupation” requires a complementary understanding of jus post bellum to reconcile current practice (including the endorsement of some practitioners of transitional justice) and the Conservation Principle of jus in bello (prohibiting major changes in the institutions of the occupied territory). The tradition of jus post bellum covering occupation goes back to Immanuel Kant’s exception to the Conservation Principle when it comes to the constitution of warlike states.63 Arguably, if a legitimate new government is established and widely recognized, belligerent occupation (where a foreign state exercises effective control over another state’s territory without the latter state’s consent) may become pacific occupation (occupation with the latter state’s consent) or international territorial administration,64 such as the United Nations Transitional Authority in Cambodia.65 This is, of course, a highly problematic, charged, and contested issue, but one that cannot be ignored. Merely placing a compliant puppet or satellite state should not remove the obligations of the occupier under jus in bello. The legitimacy of post-belligerent occupation is clearly tied to the validity of consent free from the threat of use of force as guaranteed by the Article 52 of the Vienna Convention on the Law of Treaties—jus post bellum law that is more procedural in nature, to which we shall turn shortly.

The international law applicable to state responsibility,66 particularly with regards to new states created through conflict, is also an area of law that must be referenced by a body of law applicable to the transition from armed conflict to peace. State responsibilities also can provide the framework for considering the responsibility of international organizations and institutions.

The international law applicable to peacekeeping operations in the aftermath of armed conflict must also be considered in a comprehensive body of law applicable to the transition to peace. Similarly, status of armed forces on foreign territory agreements (SOFAs) are implicated by a jus post bellum regime.

Criminal law, both international and domestic, as well as laws regarding reparations (whether included as part of a criminal law regime or not) are also an important part of jus post bellum, if those laws have application to the transition from armed conflict to peace. The important criterion for their inclusion is not the venue (international or domestic) nor the source, but their applicability to the transition to peace.

Environmental law, particularly with respect to the rights and obligations relating to repairing and rebuilding the environmental damage from the conflict, but also (p.94) resolving any resource disputes related to the conflict, may be implicated in the transition to a sustainable peace.

The Responsibility to Protect doctrine67 includes the Responsibility to Prevent, Responsibility to Respond, and the Responsibility to Rebuild. Of the three norms within the Responsibility to Protection doctrine, the Responsibility to Respond has received the most attention and has the most bearing on questions related to jus ad bellum and jus in bello, as it seeks to replace the rhetoric of humanitarian intervention with guidelines of responses short of the use of armed force and constraints on the resort to armed force and how it is used. The Responsibility to Prevent and the Responsibility to Rebuild are more tightly tied to jus post bellum.

More procedural in nature

Article 52 of the Vienna Convention on the Law of Treaties states in full: “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”68 This is a particular area of concern for jus post bellum. First a note on terminology: use of the term “peace treaty” indicates an agreement exclusively between states, unlike the term “peace agreement,” which is used for agreements not exclusively between states. Consider a generic, hypothetical peace treaty. Article 52 of the Vienna Convention on the Law of Treaties implies that the validity of that peace treaty, the foundation of a transition from interstate armed conflict to peace, depends on whether there has been an illegal threat or use of force to procure that treaty. In other words, the legal validity of the foundation of the transition to peace depends on what is typically considered a question of jus ad bellum, the legality of the use or threat of force. This connection between jus ad bellum and jus post bellumemerges not through an analysis of substantive rights and restrictions during the transition to peace, but through an analysis of the legitimate procedure for creating a peace treaty.

Recognition is also a critical question in jus post bellum. In order to apply jus post bellum, practitioners must be able to identify states and governments. This can be a contested issue, particularly for states in the case of secession (e.g. Bangladesh) and for governments in the case of contested legitimacy of a new regime (e.g. post-Democratic Kampuchea Cambodia). The law regarding recognition of states and recognition of governments is clearly implicated in the transition to peace.

The procedural law applicable to substantive criminal and civil law are also part of the transition to peace. This is not only with respect to the high profile, highly contested (p.95) issues such as amnesties for the perpetration of alleged crimes related to the armed conflict. It includes questions of jurisdiction, immunities, statutes of limitation, and other questions of admissibility.

Mixed substantive and procedural in nature

Some subjects are very difficult to characterize as mostly substantive or procedural, or at least require further analysis to distinguish particular aspects that are more substantive or procedural. For example, the United Nations Security Council Resolution 132569 enunciates both procedural norms for the resolution of armed conflict70 and norms for the substance of peace agreements.71

D. Summarizing the contrast in content

Transitional Justice has evolved into a robust body of law and practice involving a wide variety of tools to respond to the challenges of responding to widespread or systematic human rights abuses in the context of a political transition to a new regime. Jus post bellum implicates a rich variety of legal traditions and regimes, applied to the particular situation of the transition from an armed conflict to a sustainable peace.

VI. Specific to Global Contrast

A. The national and international dimensions of transitional justice

One phenomenon that must be addressed with respect to the national and international dimensions of Transitional Justice is what has been called a “justice cascade.”72This term was coined to describe the dynamics behind the transnational effort to try Augusto Pinochet for alleged crimes under his regime, specifically “what changed between 1982 and 1999 that made Pinochet’s arrest in Britain possible,”73 and refers more generally to how one legal proceeding, often abroad, can trigger domestic proceedings. It is clear that to understand how and why Transitional Justice works, one must keep in mind the sequence of Transitional Justice efforts, not only in terms of (p.96) domestic application of Transitional Justice tools, but in terms of steps taken internationally and in domestic fora.

While there are international tools of transitional justice, notably international fact-finding missions and particular investigations and criminal prosecutions in international fora, there could also be international criminal prosecutions that should not be considered transitional justice. Such prosecutions could take place in a time that had effectively no particular reference to the transition in regime, such as a prosecution for crimes that happened several regimes ago, as well as international criminal prosecutions that do not implicate human rights violations (for example a prosecution purely for the crime of aggression or a war crime that did not implicate a human rights violation) or a change in political regime (such as a failed coup or election-related violence).

To return to the “justice cascade” phenomenon, it is clear that while transitional justice has historically been largely focused on domestic responses to crimes of previous regimes, the picture of modern transitional justice is not complete without awareness of how the geographic scope of Transitional Justice may cross national borders. Tightly linked to the idea of a “justice cascade” in which judicial action in one (foreign) forum can result in judicial action in another forum is the idea of the “Pinochet Effect.”74 The Pinochet Effect emphasizes the transnational change in tone across Latin America and the world due to the effective fight against impunity by leaders of previous regimes. This idea of the international climate or zeitgeist influencing transitional justice is helpful in order to understand the interplay between the domestic, regional, and international arenas.

B. Plotting the content of jus post bellum: specific to global

The idea of jus post bellum as international law may lead one to believe that local context is largely irrelevant to the law; that it is a universal standard that applies to varied local and specific facts, but that the law itself does not change. In other words, while the assumption of Transitional Justice may be local actors working locally, the assumption with respect to jus post bellum may be that international norms, international fora, and the international perspective is all that fundamentally matters. This is not the case. In addition to the global or international level, it is also helpful to consider regional or mid-range level and local or specific levels of analysis.

On the regional or mid-range level, a few examples may be helpful. Substantively, in addition to UN peacekeeping efforts, there exist regional peacekeeping efforts that may be subject to specific regional guidelines and governance. To take an example of what may be a mid-level rather than a regional set of jus post bellum problems, the particular problems of resolving such atypical and contested armed conflicts such as the so-called “war on terror” (spanning multiple, non-contiguous countries) or the “war on drugs” (involving massive loss of life in northern Mexico, civil wars in Colombia and Afghanistan, etc.)—conflicts which often cross national borders or exist transnationally (p.97) in disparate networks with little reference to national borders. Of course, traditional conflicts also have important specific regional contexts, whether in the great lakes region of Africa or the central-south Asian context of Afghanistan and Pakistan. Procedurally, regional international organizations are also faced with the question of recognition of states and governments after conflicts. Multilateral negotiations to end armed conflict and build a sustainable peace are often regional (rather than global or bilateral) in scope. Regional positions regarding procedural issues such as immunity, for example the African Union positions on Sudanese President al Bashir, are obviously neither global nor local in scope. Mixed procedural and substantive regional or mid-level applications of jus post bellum include the jurisprudence of regional judicial bodies and multilateral treaties regarding disarmament, including procedures for verification. On the specific or local level, more substantive examples of jus post bellum in practice might include particular instances of reparation; post-conflict resolution of a particular res or just cause under just war theory; particular instances of state practice regarding state responsibility, occupation, and peacekeeping. Instances of local more procedural jus post bellum might include bilateral or purely domestic/intrastate agreements, specific amnesties, and specific state and government recognition. Mixed substantive and procedural local jus post bellum can be found in specific disarmament, demobilization, or reintegration efforts, including verification; and jurisprudence from domestic judicial bodies relating to jus post bellum.The astute reader will note that this analysis of geographic scope builds upon the dimension of “more substantive” or “more procedural” used in the analysis of the content of jus post bellum in Part IV. Together, these analyses allow a two-dimensional plotting of jus post bellum.

VII. Historical Foundations

A. Transitional Justice

The term is rooted in political transitions of Latin American and Eastern Europe in the late 1980s and early 1990s, with the term “transition” emphasizing the change from authoritarian rule to democracy.75 Teitel links the withdrawal of support from the USSR to guerilla forces in the late 1970s to the eventual end of military rule in South America.76 The transitions in Eastern Europe after 1989 were obviously tied to the collapse of the Soviet Union. Transitional Justice, as a concept, cannot be understood without reference to the domestic political transition. As a historical phenomenon, it cannot be understood without reference to international power politics and foreign relations. Teitel suggests that the phase of post-Cold War Transitional Justice has been replaced with a new phase associated with globalization and heightened political instability.77 A full exposition of the history of Transitional Justice is outside the scope of (p.98) this chapter, but even a brief look at its history emphasizes the point emphasized by the International Center for Transitional Justice that Transitional Justice “is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse.”78

B. Jus post bellum

Understanding the historical foundations of jus post bellum requires an analysis of the contemporary division between jus ad bellum and jus in bello, as well as looking at the treatment of the concept of law applying to the transition to peace as well. Robert Kolb tentatively credited Josef Kunz with coining the terms jus ad bellum and jus in bello in their contemporary sense in 1934.79 Stahn has identified the emergence of the terms in the 1920s,80 with Guiliano Enriques using the term jus ad bellum in 1928.81

The interwar period was hardly the first time concepts of jus ad bellum and jus in bellowere in play. Indeed, the reason for the success of these terms was not only because of their usefulness in discussing the law as it was at the time, but to discuss the history of international law on these issues.

The traditional division in classical international law between the law of war and the law of peace was a sharp one. War, generally speaking, discontinued the application of what might be called the “ordinary” international law that occurred during periods of peace. Treaties, formed in peacetime between non-belligerents, were abrogated when states became belligerents. During the classical positivist era, even the naturalist constraints on the power to wage war were downplayed. The pre-First World War Hague Conventions of 1899 and 1907 and the post-First World War efforts such as the League of Nations and the Kellogg-Briand pact can be seen as part of an effort to lessen (and ultimately eradicate) the possibility of war ceasing the application of the international law of peace. Of particular interest is the Pacific Settlement of International Disputes (Hague I) of 18 October 1907.

The terms jus ad bellum and jus in bello arose in the context framed by the pre- and post-First World War efforts to address the question of the power to wage war, and indeed on Lauterpacht’s framing of the function of law in the international community as a comprehensive system. Those using the terms built on a rich tradition, and in many ways surpassed the classical naturalists in establishing rules to constrain armed conflict. Armed conflict, regardless of whether it was adorned with the trappings of formal declarations or recognitions of a state of war, was increasingly going to be considered less of a reason for a suspension of the “ordinary” functions of law in the international community, the functions that pertain during peace. (p.99)

Robert Kolb, in the “Origin of the twin terms jus ad bellum/jus in bello,” leads one to an irony in the origins of the creation of a fundamental aspect of jus in bello—that it applies regardless of the justness of the cause of either side, generally applying to all belligerents. The strength of the idea of the Reason of State depreciated the question of the justness of a war during the nineteenth century.82 Kolb suggests, following Peter Haggenmacher,83 that the idea of the Reason of State allowed a focus on the de factoand de jure conduct of hostilities, regardless of the justness of the resort to armed force. A critical function of the emergence of these two terms is the emphasis on the separate operation of these two terms—underlining the idea that one can (and should) objectively evaluate the rights and duties pertaining to the conduct of armed force separately from the legality of resorting to armed force, and vice versa.

In the context of the Grotian tradition as identified by Lauterpacht, there is an irony that the apparent failure of one aspect of the Grotian tradition enabled the success of another aspect of the Grotian tradition. Namely, the failure of the Rejection of “Reason of State” 84 with respect to the resort to armed force enabled The Subjection of the Totality of International Relations to the Rule of Law 85 with respect to what might be seen as one of the most difficult areas to apply the Rule of Law—the rights and duties durante bello, when international relations between the belligerents has been reduced to armed conflict. This, in a sense, is an important part of the story Kolb tells about the emergence of the terms jus ad bellum and jus in bello.

As Randall Lesaffer notes, interest in the history of international law has waxed and waned, with an increase during the First and Second World Wars followed by a subsequent decline.86 This last peak in interest generally coincides with the coining of jus ad bellum and jus in bello, in addition to Lauterpacht’s framing of the Grotian Tradition. Lesaffer suggests that we are in the midst of a new surge of interest in international history, perhaps preparing the ground for adoption and development of a new term, jus post bellum.

VIII. Current Usage

Transitional Justice has been a subject of increased interest over the last 15 years. Jus post bellum has also been a subject of increased interest in recent years, although not yet to the same degree as Transitional Justice. This can be illustrated in the following chart showing usage of each phrase in a large corpus of printed work.87 (p.100)

Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post BellumOutlining the Matrix of Definitions in Comparative Perspective

Fig 5.1 Usage of each phrase using in a corpus of all available materials published in English

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.

IX. Going Forward—Continuing the Grotian Tradition

Those interested in jus post bellum would be well served to pay attention to Transitional Justice for a variety of reasons. Transitional Justice will often be applied simultaneously with jus post bellum. The area of law at the heart of Transitional Justice, International Human Rights Law, is critical to understanding the law applicable to the ending of conflict and the building of peace—from the treatment of amnesties in peace agreements to the protection of human rights in constitutional documents. The success of Transitional Justice advocates in placing human rights and the fight against impunity at the center of global governance should be lauded and emulated. At the same time, those interested in jus post bellum may wish to take note of the danger in definitional creep, particularly using a relatively new term such as “Transitional Justice” and applying it without a change in regime, particularly in a one-sided manner by a human rights-abusing regime.

The observant reader may have noted that, in contrast with other scholars, the definition of Transitional Justice embraced by this chapter is narrower than the increasingly (p.101) broad definitions commonly used, while the definition of jus post bellum is broader. I do not see this as a contradiction, but rather a reflection of the separate problems each concept is designed to address.

Transitional Justice, as a specific conception of justice responding to the particular problems of political change and confronting the wrongdoings of repressive predecessor regimes, allows for establishing a new political compact that pledges an end to impunity for human rights abuses, including by new elites. Focusing on that specific problem and specific concept makes the term more useful than a general euphemism for anything alleging human rights abuses, regardless of political circumstance.

Jus post bellum recognizes the problem of systematically applying international law to the difficult area of transitioning from armed conflict to a sustainable peace. A narrow focus on one aspect of the transition to a sustainable peace misses the challenge implied by the term “jus,” that the effort of those involved must be to find the connections between various legal obligations and discover what is systematic about the law that applies to the process of achieving a sustainable peace.

My primary concern in this chapter been to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Secondarily, I hope that the concept of jus post bellum may help those interested in Transitional Justice to refocus their field.

There is, perhaps, an irony in suggesting that the Grotian Tradition as identified by Lauterpacht is “continuing” with the development of jus post bellum as a system of law pertaining to the transition from armed conflict to a sustainable peace. Lauterpacht did not portray international law as an inkspot that had spread to some areas but not others. Should disputes have arisen in his era as to the legality of acts taken during the transition to a sustainable peace, he surely would have felt those disputes could have arisen.

Yet embracing the concept that there should be no judicial non liquet in international law permits the idea that international law changes and develops, clarifies and matures. In a sense, uncovering the normative and historical foundations of jus post bellum is a project of construction as much as genealogy or archaeology. Application of international law in the transition to sustainable peace may be more or less part of a coherent and integrated system. The vision of Transitional Justice practitioners of their field as not a “special” field of law but a “holistic” practice of judicial and non-judicial approaches to a particular circumstance88 surely provides some guidance and reassurance to those approaching the definitional questions of jus post bellum.

While I maintain that jus post bellum is best viewed primarily as a system of law, it is not yet as tightly internally integrated as its sister systems of law, jus ad bellum, and jus in bello. Conversely, jus post bellum is probably more tightly connected to diverse fields of law that operate during times of transition from armed conflict and during other circumstances. This is not a threat to the legitimacy of the concept of studying the international law that exists during the circumstance of transition to a sustainable peace, rather it is an opportunity and a challenge to discern the operations of law in this complex and varied environment.

Notes:

(1) A brief stylistic note—throughout this chapter, Transitional Justice will be capitalized, while jus post bellum, jus ad bellum, and jus in bello will not be capitalized but will be italicized. Italicization is traditional for foreign terms not in widespread use in an English-language article, and I do not believe these terms qualify as adopted into the English language. Transitional Justice is capitalized because I want to emphasize the proper noun specific concept of Transitional Justice, not simply justice that is in some way “transitional.” Jus post bellum, jus ad bellum, and jus in bello are already emphasized and are clearly terms of art, and as such do not need the emphasis or clarity provided by capitalization. The word “jus” rather than “ius” is used due to “jus” being more common, but researchers should be aware that a minority of references in the literature are to ius post bellum, ius ad bellum, and ius in bello rather than jus post bellum, jus ad bellum, and jus in bello.

(2) Robert Kolb, “Origin of the Twin Terms Jus Ad Bellum/Jus In Bello” (1997) 37 International Review of the Red Cross 553; Carsten Stahn, “Jus Post Bellum: Mapping the Discipline(s)” (2008) 23 American University International Law Review 311, 312. For a graphical depiction of the use of the terms since 1930, see <http://books.google.com/ngrams/graph?content=jus+in+bello%2Cjus+ad+bellum%2Cius+in+bello%2Cius+ad+bellum&year_start=1930&year_end=2008&corpus=0&smoothing=0> (accessed 25 July 2013).

(3) Hersch Lauterpacht, “The Grotian Tradition in International Law” (1946) 23 British Year Book of International Law 1.

(4) Martti Koskenniemi, “The Function of Law in the International Community: 75 Years After” (2008) 79 British Year Book of International Law 353.

(5) Hersch Lauterpacht, The Function of Law in the International Community (Oxford University Press 1933) 134.

(6) Lauterpacht, The Function of Law in the International Community (n.5) 134.

(7) Lauterpacht, The Function of Law in the International Community (n.5) 134.

(8) Koskenniemi, “The Function of Law in the International Community: 75 Years After” (n. 4).

(9) See e.g. Joseph Kunz, “The ‘Vienna School’ and International Law” (1933–34) 11 New York University Law Quarterly Review 370.

(10) As Hugo de Groot is generally referred to by his Latin eponym, I will follow that practice in this chapter.

(11) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 19.

(12) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 30.

(13) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 30.

(14) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 19.

(15) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 30.

(16) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 35.

(17) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 43.

(18) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 46.

(19) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 46.

(20) See Martti Koskenniemi, “Lauterpacht: The Victorian Tradition in International Law” (1997) 8 European Journal of International Law 215, 217–18.

(21) 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.

(22) Brian Orend, War And International Justice: A Kantian Perspective (Wilfrid Laurier University Press 2000) 57.

(23) See e.g. Ruti Teitel, Humanity’s Law (Oxford University Press 2011).

(24) Teitel, Humanity’s Law (n. 23).

(25) Ruti Teitel, “Transitional Justice Genealogy” (2003) 16 Harvard Human Rights Journal 69; see also Ruti Teitel, Transitional Justice (Oxford University Press 2000) 3.

(26) Ruti Teitel, “Transitional Justice Genealogy” (n. 25).

(27) Sections of this chapter draw partly from Jens Iverson, “Transitional Justice, Jus Post Bellum, and International Criminal Law: Differentiating the Usages, History, and Dynamics” (2013) 7 International Journal of Transitional Justice 413.

(28) See Part VI of this chapter.

(29) See e.g. Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre (The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, originally published 1887, tr. W. Hastie, The Lawbook Exchange 2002) (emphasis added) 214 (“The Right of Nations in relation to the State of War may be divided into: 1. The Right of going to War; 2. Right during War; and 3. Right afterWar, the object of which is to constrain the nations mutually to pass from this state of war, and to found a common Constitution establishing Perpetual Peace.”) The definition of a “just and sustainable peace” is itself an extremely interesting research topic, involving what many have termed “positive peace” vs. “negative peace,” and definitions of sustainable peace not in terms of the relations of two states but in terms of the international system as a whole.

(30) Black’s Law Dictionary (6th edn, West Group, 1991). The alternative definition of jus as “a right,” that is, “a power, privilege, faculty, or demand inherent in one person and incident upon another” is not applicable in this instance.

(31) International Center for Transitional Justice (ICTJ), “What is Transitional Justice?” <http://ictj.org/about/transtional-justice> (accessed 4 July 2013).

(32) Christine Bell, Peace Agreements and Human Rights (Oxford University Press 2000) 15.

(33) Teitel, “Transitional Justice Genealogy” (n. 25) 3.

(34) Teitel, “Transitional Justice Genealogy” (n. 25) 69.

(35) UN Security Council, “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report of the Secretary-General” (23 August 2004) UN Doc. S/2004/616, 4.

(36) UN Security Council, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General” (12 October 2011) UN Doc. S/2011/634, 6.

(37) Amnesty International, “United Kingdom: Summary of Concerns Raised with the Human Rights Committee” (1 November 2001) <http://amnesty.org/en/library/asset/EUR45/024/2001/en/e81811b7-d8b3-11dd-ad8c-f3d4445c118e/eur450242001en.html> (accessed 4 July 2013).

(38) See e.g. Johan Galtung, “Violence, Peace, and Peace Research” (1969) 6(3) Journal of Peace Research 167–91.

(39) Lauterpacht, “Grotian Tradition in International Law” (n. 3) 46.

(40) Lauterpacht, “Grotian Tradition in International Law” (n. 3) 46.

(41) Naomi Roht-Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-first Century: Beyond Truth Versus Justice (Cambridge University Press 2006).

(42) Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace (July 2009) <http://www.hrw.org/sites/default/files/reports/ij0709webwcover_3.pdf> (accessed 4 July 2013).

(43) See e.g. Naomi Roht-Arriaza, “Transitional Justice and Peace Agreements” (2005) Working Paper, International Council on Human Rights Policy 3, 5 <http://www.ichrp.org/files/papers/63/128_-_Transitional_Justice_and_Peace_Agreements_Roht-Arriaza__Naomi__2005.pdf> (accessed 4 July 2013).

(44) ICTJ, “What is Transitional Justice?” (n. 31).

(45) Alexander Mayer-Rieckh and Pablo de Greiff (eds), Justice as Prevention: Vetting Public Employees in Transitional Societies (Social Science Research Council 2007).

(46) See e.g. Elizabeth A. Cole and Judy Barsalou, “Unite or Divide? The Challenges of Teaching History in Societies emerging from Violent Conflict” (United States Institute for Peace 2006) 2 (“History education should be understood as an integral but underutilized part of Transitional Justice and social reconstruction”).

(47) Glen W. LaForce, “The Trial of Major Henry Wirz—A National Disgrace” (1988) 1988 Army Law 3.

(48) Seneca the Younger, Epistula Ad Lucilium II, Book 1, Letter 2, line 2.

(49) Joanna R. Quinn, “Chicken and Egg? Sequencing in Transitional Justice: The Case of Uganda” (Autumn/Winter 2009) 14(2) International Journal of Peace Studies 35–53.

(50) ICTJ, “What is Transitional Justice?” (n. 31).

(51) Teitel, “Transitional Justice Genealogy” (n. 25) 69.

(52) Noémie Turgis, “What is Transitional Justice?” (2010) 1 International Journal of Law, Transitional Justice and Human Rights 9, 14.

(53) Turgis, “What is Transitional Justice?” (n. 52) 14.

(54) Bell, Peace Agreements and Human Rights (n. 32) 17.

(55) Bell, Peace Agreements and Human Rights (n. 32) 17; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277; Jean-Marie Henckaerts, Mass Expulsion in Modern International Law and Practice (Martinus Nijhoff 1995).

(56) Bell, Peace Agreements and Human Rights (n. 32) 17; see also Nātān Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff 2003).

(57) Bell, Peace Agreements and Human Rights (n. 32) 17.

(58) Bell, Peace Agreements and Human Rights (n. 32) 17.

(59) See Georg Schwarzenberger, “Jus Pacis Ac Belli? Prolegomena to a Sociology of International Law” (1943) 37 American Journal of International Law 460, 470.

(60) Bell, Peace Agreements and Human Rights (n. 32) 407; see also Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford University Press 2008).

(61) The United Nations Charter does not limit its application to jus post bellum to providing for the authority of the Security Council to act under Chapter VI or Chapter VII to restore peace. Article 78 of the United Nations Charter states in full: “The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.” The trusteeship system, like the mandate system before it, was in part an effort to realize the principle of self-determination and to move away from colonialism and empire as a post-war norm. While the United Nations Trusteeship Council is moribund and widely considered obsolete, the history of colonization and decolonization must inform an analysis of the normative and historical foundations of jus post bellum.

(62) Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910), 36 Stat. 2277, 1 Bevans 631, 205 Consol TS 277, Art. 42.

(63) See e.g. Kant, Metaphysische Anfangsgründe der Rechtslehre (n 29).

(64) See e.g. Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008); Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press 2010).

(65) See e.g. Steven R. Ratner, “The Cambodia Settlement Agreements” (1993) 87 American Journal of International Law 1.

(66) See International Law Association (ILA), “Draft Articles on Responsibility of States for Internationally Wrongful Acts” in ILA, “Report of the International Law Commission on the Work of its Fifty-third Session” (2001) UN GAOR 56th Session Supplement 10, 43; UN Doc. A/56/10.

(67) See International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre 2001) 39–45; see also United Nations Secretary General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change (2004) 65–7; United Nations General Assembly, 2005 World Summit Outcome, UN Doc. A/60/L.1 (15 September 2005) paras 138–9; United Nations General Assembly, Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/63/677 (12 January 2009) para. 48.

(68) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 52.

(69) UNSC Res. 1325 (31 October 2000) UN Doc. S/RES/1325.

(70) “1. Urges Member States to ensure increased representation of women at all decision-making levels in national, regional and international institutions and mechanisms for the prevention, management, and resolution of conflict[.]‌”.

(71) “8. Calls on all actors involved, when negotiating and implementing peace agreements, to adopt a gender perspective, including, inter alia: (a) The special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and post-conflict reconstruction; (b) Measures that support local women’s peace initiatives and indigenous processes for conflict resolution, and that involve women in all of the implementation mechanisms of the peace agreements; (c) Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary[.]‌”

(72) See Ellen Lutz and Kathryn Sikkink, “The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America” (2001) 2 Chicago Journal of International Law 1; see also Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (W. W. Norton & Co. 2011).

(73) Lutz and Sikkink, “The Justice Cascade” (n. 72) 2.

(74) See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (University of Pennsylvania Press 2006).

(75) ICTJ, “What is Transitional Justice?” (n. 31); see also Juan Linz, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Johns Hopkins University Press 1996); Guilermo O’Donnell, Philippe C. Schmitter, and Laurence Whitehead, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies Vol. 4 (Johns Hopkins University Press 1986).

(76) Teitel, “Transitional Justice Genealogy” (n. 25) 71.

(77) Teitel, “Transitional Justice Genealogy” (n. 25) 71.

(78) ICTJ, “What is Transitional Justice?” (n. 31).

(79) Kolb, “Origin of the Twin Terms Jus Ad Bellum/Jus In Bello” (n. 2) 561.

(80) Stahn, “Jus Post Bellum: Mapping the Discipline(s)” (n. 2) 312.

(81) See Giuliano Enriques, “Considerazioni sulla teoria della Guerra nel diritto Internazionale” (Considerations on the Theory of War in International Law) (1928) 7 Rivista Di Diritto Internazionale (Journal of International Law) 172.

(82) Kolb, “Origin of the Twin Terms Jus Ad Bellum/Jus In Bello” (n. 2) 556.

(83) Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses Universitaires de France 1983) 599.

(84) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 30.

(85) Lauterpacht, “The Grotian Tradition in International Law” (n. 3) 19.

(86) Randall Lesaffer, Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (Cambridge University Press 2004) 2.

(87) Source: Google Books Ngram Viewer, dataset 20090715 <http://books.google.com/ngrams/ graph?content=jus+post+bellum%2Ctransitional+justice&year_start=1990&year_end= 2008&corpus=0&smoothing=0> (accessed 24 January 2012). This represents the usage of the two exact terms “Transitional Justice” and “jus post bellum” over time within millions of printed books. For an additional representation including terms with varied capitalization, generally amplifying the same usage, see <http://books.google.com/ngrams/graph?content=jus+post+bellum%2Ctransitional+justice%2C+Jus+Post+Bellum%2C+Transitional+Justice&year_start=1990&year_end=2008&corpus=0&smoothing=0> (accessed 13 July 2013). For more on the use of bigram analysis of a large corpus of scanned materials, see Jean-Baptiste Michel et al., “Quantitative Analysis of Culture Using Millions of Digitized Books” (16 December 2010) 331 Science 176 <http://www.sciencemag.org/content/331/6014/176> (accessed 13 July 2013).

(88) ICTJ, “What is Transitional Justice?” (n 31).