Building the Notion of Jus Post-Bellum

 

The idea of developing a body of law that regulates post-conflict situations and the notion of Jus – post bellum are not new. The first has been proposed in recent years by many scholars, motivated by the challenges faced by the International Community in major humanitarian crisis such as the conflict in the former Yugoslavia, or the US led occupation of Iraq in 2003 and when managing civil wars or post-conflict societies.

 

The notion of Jus Post-Bellum, can be traced to the traditional Just War Doctrine[1]. For Michael Walzer, “the object of a war is a better state of peace. And better, within the confines of the argument for justice, means more security than the status quo ante bellum, less vulnerability to territorial expansion, greater safety for ordinary men and women and for their domestic self determination”[2]. Gerry Bass explains the such justice after war with an example: if a State, he said, “wages a war to remove a Genocidal Regime but then leaves the conquered country awash with weapons and grievances, and without a security apparatus, then it may relinquish by its post – war actions the justice it might otherwise have claimed”[3].

 

The jus war doctrine proposes that in the event of International Armed Conflicts, the compliance with the justice of the war means that the leaders have a duty to consider the long term effects of war[4] and that duty will complete the justice of the war. The Jus Ad Bellum connects with the Jus Post-Bellum in that the declared ends of that justified war impose obligations on belligerent States to try, after the conclusion of the war, to bring about the desired outcome[5].

 

That connection applies in today’s current affairs on war and peace, where the justice of the war is manifested in the political rhetoric. There, a public declaration of “the ends of war” is made by the commander in chief of the armed forces of a state. Those declared ends of war are intended to play a role in legitimating the use of force around the world and to form coalitions.[6] Consequently, in the aftermath of a conflict “an assessment of the post – bellum record of an entity may further help distinguish political rhetoric from legitimate motivation in cases of intervention for humanitarian purposes”[7] or other ends.

 

Jus Post-Bellum as a concept has not been fully constructed[8] but the starting point of its notion must be to recognise that a conflict is a dynamic phenomenon that moves through different stages[9] such as the conflict escalation phase and the post–cease fire phase[10]. Then, it will be possible to say that the post–conflict phase of Armed Conflict commences at the termination of an armed conflict and concludes when long term peace objectives are achieved in the post- conflict country[11]. In other words, it supposes two key points: - the termination of an armed conflict -, and - the ends or objectives of a war -.

 

In response to those points, the legal framework for post-conflict situations should include the regulation of two features, firstly the transition from war to peace, specifically including conflict termination and peacemaking[12], and secondly, once the conflict have concluded - in order to achieve the “ends of war”- the ruling of a process for reconstruction and rehabilitation of post – conflict states. This process will facilitate the achievement of long term and sustainable peace in a post - conflict country, a peace which is an improvement of what was previously established.

 

The Jus War Doctrine constitutes an important tool for the analysis and finding of Jus Post-Bellum principles. Briand Orend for example, one of the leading just war scholars and theorists[13], enunciates the following five Jus Post-Bellum principles whose violation would contradict the rules of just and lawful war and which should therefore be incorporated in the Jus post – Bellum framework:

 

Just cause of termination: There should be a reasonable vindication of rights whose violation grounded the resort to war, the restoration of the objects of victim’s rights and by punishment, compensation and rehabilitation. Right Intention: revenge cannot be the main motivation of the post – conflict phase. Due process and fairness should dominate the prosecution and punishment of Jus in Bello war crimes. Public Declaration and Legitimate Authority: the terms of peace must be publicly proclaimed by a legitimate authority. Discrimination: The terms of the peace and the post – conflict rehabilitation and reconstruction must differentiate between: (i) Political Military Leaders, (ii) Soldiers and (iii) Civilian Population. Proportionality: The terms of the peace must be proportionate to rights vindication and the people of the defeated State must never forfeit their Human Rights[14].

 

 


[1]  The jus war doctrine, has been envisaged as a “body of moral wisdom deeply and broadly rooted in western ideals, institutions and experiences. Developed over history as a result of contribution from both secular and religious sources, revelling the practice of State craft and war as well as moral and political theory” Johnson, J.T., Morality & contemporary warfare. 2001, New Haven; London: Yale University Press. ix, 259 p. Basingstoke: Macmillan Press. Pg 23, (for a brief description of Jus war tradition’s development) Pg 24.

[2]Walzer, M., Arguing about war. 2004, New Haven, Conn., London: Yale University Press. xv,  pg: 121

[3] Bass, G.J., Jus Post Bellum. Philosophy & Public Affairs, 2004. 32(4): p. 386

[4] John Rawls, Stated that Statesmen are to hold fast to the aim of gaining a just peace, and they are to avoid the things that make achieving such a peace more difficult. In this regard they must assure that the proclamation made on behalf of their people made clear that once peace is securely re – established, the enemy society is to be granted an autonomous well – ordered regime of its own.”  Rawls, J., The Law of peoples : with, The idea of public reason revisited 1999, Cambridge, Mass: Harvard University Press pg: 98

[5] Bass, G. J. (2004) op. cit., (Note 5).  

[6] For an example of how ends of war are used in the political rhetoric see Jorge Bush’s speech on the future of Iraq, Washington D.C. 26th February 2003. available [on line] at http://www.whitehouse.gov/news/releases/2003/02/20030226-11.html, [Accessed: 7 - 02 – 08]  and for a document on contemporary ends of war see President George W. Bush, The national security strategy of the United States of America (sep 17,2002) available [on line] at http://www.whitehouse.gov/nsc/nss.pdf.   [Accessed: 19 – 10 – 07 ]

[7] Carsten Stahn Mapping the discipline in Carsten Stahn & Jahn K. Kleffner (eds.) (2008). Jus Post Bellum Towards a Law of Transition from Conflict to Peace. The Hague, T.M.C. Asser Press pg. 102  

[8] Jus Post – Bellum: “cannot be understood in its literal sense in its modern setting. The notion must be tied to armed violence rather than inter – State war if it is mean to apply to contemporary uses of force such as internal armed conflicts and enforcement operations” Carsten Stahn, ibid., pg 233

[9] Moxon-Browne, E., A future for peacekeeping? 1997, Houndmills, Basingstoke: Macmillan Press. Pg 33

[10] Diehl, P.F., International peacekeeping. Perspectives on security. 1993, Baltimore: The Johns Hopkins University Press. x,  pg 21

[11] Based on Evans, M., Just war theory : a reappraisal. 2005, Edinburgh: Edinburgh University Press. xiv, 237 p13.

[12] For a different approach, where conflict termination or termination law, is seen as a separate and independent category of law, see for instance: Davis Rodin in Carsten Stahn & Jahn K. Kleffner (eds.) (2008) op. cit., (note 9) at pg   253 – 295.

[13] DiMeglio, R.P., Evolution of the Just War Tradition: Defining Jus Post Bellum. Military Law review, 2005. 186(116) pg 118

[14] Orend, B. (1999). "Terminating Wars and Establishing Global Governance." Canadian Journal of Law and Jurisprudence XII(No 2): Pg 259