Cover Page The handle http://hdl.handle.net/1887/55949 holds various files of this Leiden University dissertation Author: Iverson, Jens Muir Title: The function of Jus Post Bellum in international law Date: 2017-09-21 Introduction Introducing the Theme of Jus Post Bellum Introduction A. Introducing the Theme of Jus Post Bellum Sir Hersch Lauterpacht once opined that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps, even more conspicuously, at the vanishing point of international law.”1 Lauterpacht was not arguing that there was no law to apply—something antithetical to his approach.2 Rather, he was suggesting that there was work to do. He makes this observation after a stunning list of problems that require clarification,3 suggesting that the lawyer must “do his duty regardless of 1 Lauterpacht, H, The Problem of the Revision of the Law of War, British Year Book of International Law 29 (1952) 360, 381-2. 2 See generally, Lauterpacht, Hersch. Function of Law in the International Community. Oxford: Clarendon Press, (1933); "Non Liquet and the Function of Law in the International Community’(1959)." BYIL 35: 124; Lauterpacht, Hersch. "The Doctrine of Non-Justiciable Disputes in International Law." Economica 24 (1928): 277-317. The title of the present work, “The Function of Jus Post Bellum in International Law” is in part a homage Lauterpacht’s historic work, The Function of Law in the International Community. It was based on an earlier 1928 work in Economica in which Lauterpacht argues against the doctrine of non-justiciable disputes in international law and expanded into a general exploration into the principal issues of the philosophy of international law. Lauterpacht suggested “a hypothesis which, by courageously breaking with the traditions of a past period, incorporates the rational and ethical postulate, which is gradually becoming a fact, of an international community of interests and functions.” Lauterpacht, Hersch. Function of Law in the International Community. Oxford: Clarendon Press, (1933), p. 422. This hypothesis, that an international community of interests and functions exists, informs this work. 3 The list is 36 lines long. Lauterpacht, H, The Problem of the Revision of the Law of War, British Year Book of International Law 29 (1952) 360, 381. 1 Introduction Introducing the Theme of Jus Post Bellum dialectical doubts—though with a feeling of humility[.]”4 What is that duty? To “expound the various aspects of the law of war.”5 One might continue the observation—if the laws regulating war are at the vanishing point of international law, the laws regulating the transition from war to peace are at the vanishing point of laws regulating war. The transition to peace is at the frontier of efforts to govern human conduct, both at the global and local level. As an armed conflict concludes, the victor’s comparative strength is often at its apogee, and the opposing side may be at its most desperate. How can either side be constrained by law under these challenging circumstances? Characterizing the transition to peace as a phenomenon at the frontier of law only hints at the rich, complex nature of this difficult area. The transition to peace is often a period of intense instability and complex legal interplay and flux. New states, constitutions, inter- state agreements and peacekeeping agreements may come into existence, crimes may or may not be amnestied, old institutions may lose their legal existence and lawgivers of the ancien régime may lose their role as a source of law. The causes of the conflict, the conflict itself, and actions taken within the conflict may be the subject of legal action as the transition to peace moves forward. 4 Lauterpacht, H, The Problem of the Revision of the Law of War, British Year Book of International Law 29 (1952) 360, 381. Referring to lawyers generically as male was common in 1952. 5 ibid 382. 2 Introduction Problematization B. Problematization This study focuses on legal and normative principles of the transition from armed conflict to peace, often called jus post bellum. Jus post bellum is self-consciously named in relation to its sister terms, jus ad bellum and jus in bello, terms that have been exhaustively developed and theorized since they were coined in the early-1900s, a subject that will be discussed in detail below. Jus post bellum, in contrast, is comparatively under-developed. For jus post bellum, there is no foundational treaty text equivalent to the Hague Regulations of 18996 or 19077 or the Geneva Conventions of 19498 for jus in bello or Articles 2 and 51 of the United Nations Charter9 for jus ad bellum. It is a phrase frequently used without definition, or with little understanding that others may use the term to mean something else. It is almost never used with anything approaching a full exposition of the intellectual history upon which it is built. Before the scholarship in 6 Short title: Hague Declaration (1899); International Peace Conference 1899, Declaration (IV,3) concerning Expanding Bullets. The Hague, adopted 29 July 1899, (entry into force 4 September 1900). 7 Short title: Hague Regulations (1907); International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907. 8 International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31 (“GCI”); International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85 (“GCII”); International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135 (“GCIII”); International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 (“GCIV”). 9 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. 3 Introduction Problematization recent years, the laws and principles that constitute the jus post bellum were rarely expounded. This study helps to consolidate a firmer theoretical grounding for the term, as well as a clearer intellectual history and analysis of its content. Jus post bellum, like jus gentium or jus civile, is best understood as by definition primarily a system or body of law and related principles. While this is primarily a work of legal analysis, given the deep roots of jus post bellum analysed in Chapter 1, normative aspects will also be considered. Larry May’s work on the normative principles of jus post bellum is noteworthy. May advocates that six normative principles of jus post bellum be recognized: rebuilding, retribution, reconciliation, restitution, reparation, and proportionality.10 Given the normative content of his work, he rightly suggests that the addressee of these principles are not only political leaders but average citizens.11 The goal of May’s conception of jus post bellum is the same as the hybrid functional approach outlined in this work,12 namely, one that emphasizes the functional aspects of jus post bellum (establishing a just and lasting peace) while nonetheless rooting it in a general timeline of transition from armed conflict to peace.13 As May and Elizabeth Edenberg put it: 10 See e.g. May, Larry. "Jus Post Bellum Proportionality and the Fog of War." European Journal of International Law 24.1 (2013): 315-333, p. 316. 11 ibid 318-9. 12 See particularly ch. 3. 13 May, Larry. "Jus Post Bellum Proportionality and the Fog of War." European Journal of International Law 24.1 (2013): 315-333, p. 320. 4 Introduction Problematization It is not merely peace that is at issue, but a just peace, where mutual respect and the rule of law are key considerations. […] The jus post bellum literature focuses, as one might expect, on the achieving of peace. […] While jus post bellum theorists want a just peace, not merely any peaceful settlement of hostilities, they focus on the stopping of hostilities.14 Jus post bellum principles all are aimed at securing a just and lasting peace at the end of war or armed conflict. Discussion of these principles has been standard fare in the Just War Tradition for several thousand years, even if jus post bellum principles are not usually given the status afford to jus ad bellum and jus in bello principles.15 This work principally reflects on the historic meaning of normative principles that inform contemporary law and practice in Chapter 1, Past —The Deep Roots of Jus Post Bellum. Recognition that the application of law in this area has, as May and Edenberg state, the aim of a just and lasting peace (and is not neutral with the application to these normative goals) is necessary for understanding and development of jus post bellum. Another way to frame the normative emphasis on a “just and sustainable peace” so often referenced in the literature of jus post bellum is to tie it to concepts form peace studies such as Johan Galtung’s “positive peace” being differentiated from a mere “negative” peace,16 without a just resolution of the causes of the war and conduct within the war. 14 May, L. and Edenberg, E. (2013) ‘Introduction’, in May, L. and Edenberg, E. (eds.) Jus Post Bellum and Transitional Justice:. Cambridge: Cambridge University Press, p. 1. 15 ibid. 2-3. 16 The concepts of “negative” and “positive” peace were developed by Johan Galtung in his seminal 1964 article: Galtung, J. (1965). An Editorial. Journal of Peace Research, 1(1), 1-4. For more on Galtung’s work on structural analysis of peace, see also Galtung, J. (1969). Violence, Peace and Peace Research. Journal of Peace Research, 6 (3), 167-191. Galtung, J. (1981). Social Cosmology and the Concept of Peace. Journal of Peace Research, 17 (2), 183-199. Galtung, J. (1985). Twenty-Five Years of Peace Research: Ten Challenges and Some Responses. Journal of Peace Research, 22 (2), 141-158. Galtung, J. (1990). Cultural Violence. Journal of Peace Research, 27 (3), 291-305. 5 Introduction Problematization The specific nature of what constitutes a “just” peace depends in large part on what the causes of the war and conduct of the war were. The fundamental aspect of what is “just” with respect to a “just and sustainable” peace is that jus post bellum is not simply focused on peace at any price with respect to justice; it rejects for example the goal of a sustainable peace founded on annexation, the denial of self-determination, rewarding aggression, denying the responsibility of trusteeship, violation of laws of occupation or human rights, or complete impunity for international criminal law violations. Attention should be paid not only to the justice demanded under international law but the particular priorities of those who will live in the constructed peace.17 Legal scholars interested in jus post bellum cannot shy away from principles, including normative principles, that inevitably arise in discussions of jus post bellum.18 For international lawyers the transition to peace may be at the frontier, or the vanishing point. For those surviving armed conflict and that must live in the society created by the 17 For more on subjective and objective public reasoning in the area of distributive justice, the foremost scholar on the subject may be Amartya Sen. See e.g. Sen, Amartya Kumar. Collective choice and social welfare. Vol. 11. Elsevier, 2014; Sen, Amartya. The Idea of Justice. Harvard University Press, 2011 (particularly Part IV); Sen, Amartya. Development as freedom. Oxford Paperbacks, 2001. For those particularly interested in a philosophical approach to the evaluation of post-conflict justice, the works of Larry May on the subject are recommended, particularly May, Larry. "Grotius and Contingent Pacifism." Studies in the History of Ethics (2006): 1-24; May, Larry. "Jus Post Bellum Proportionality and the Fog of War." European Journal of International Law 24.1 (2013): 315-333; May, Larry. “Jus Post Bellum, Grotius and Meionexia.” Eds. Carsten Stahn, Jennifer S Easterday and Jens Iverson. Jus Post Bellum: Mapping the Normative Foundations (OUP 2014) 15–25; May, Larry. After war ends: a philosophical perspective. Cambridge University Press, 2012. 18 For an example of an approach to define the principles of just peace from an international studies perspective, see Williams, Robert E., and Dan Caldwell. "Jus Post Bellum: Just war theory and the principles of just peace." International Studies Perspectives 7.4 (2006): 309-320. 6 Introduction Problematization peace, the possibilities and risks inherent in creating a potentially novel social structure with new rules and power relations is not at the edge but at the center of their reality. There is a chance of creating a new moment that is in a sense “pre-constitutional”— indeed peace agreements and similar documents often serve a constitutional function. One might argue that this period when the new core of a future society or relationship between states can be formed is, perhaps, controlled purely by non-legal forces, that it is the outcome solely of the use of force. But upon reflection, most jurists will reject that notion, adopting instead the notion espoused by Lauterpacht, that where there are questions, there is work to do in determining the international law that applies to the transition to peace. Without answering the type of questions described above, there is an increasing gap between the references to jus post bellum and providing a coherent, well thought out theoretical and historical basis for the concept. By exploring definitional aspects of jus post bellum, including its relationship to jus ad bellum, jus in bello, and related concepts such as transitional justice and international criminal law, this work will seek to provide a coherent view of how scholars consider the term, closing the gap between the varied definitions scholars use for the term (when a definition is supplied at all). There is an unfortunate tendency by some scholars to treat jus post bellum, transitional justice, and post-conflict justice as interchangeable—this idea or assumption of interchangeability is a tendency this work argues against. By exploring the historical roots of jus post bellum within the just war tradition, it will address the gap between scholars such as Grégory 7 Introduction Research aims Lewkowicz19 who insist that there are no such roots and the many authors who think such roots exist. With these foundations laid, the thesis will address the gap implicit in the uncertain question of the potential of jus post bellum. C. Research aims This thesis has three overarching objectives. First, the thesis will evaluate the history of jus post bellum avant la lettre, tracing important writings on the transition to peace from Augustine, Aquinas, and Kant to more modern jurists and scholars. Second, it explores definitional aspects of jus post bellum, including current its relationship to sister terms and related fields. Third, it will explore the current state and possibilities for future development of the law and normative principles that apply to the transition to peace. Jus post bellum has received an increasing amount of attention in recent years, but remains comparatively20 under-theorized, and frequently referenced without realizing that many authors be talking past each other, meaning different things while using the same term. The author’s hope for the thesis is not only to help clarify the debate over the term, but also to move the consensus towards a hybrid functional (rather than temporal) approach to jus post bellum, that is, to define an approach to this area of law that focuses on the goal of achieving a just and sustainable peace (with an awareness of temporal context) rather than a mere discussion of law that applies during early peace. 19 Lewkowicz, Grégory. "Jus Post Bellum: vieille antienne ou nouvelle branche du droit? Sur le mythe de l’origine vénérable du Jus Post Bellum." Revue belge de droit international 1 (2011). 20 As compared to the last century’s theorization of jus in bello and jus ad bellum. 8 Introduction Research questions In addition to the positive objectives identified above, it may be helpful to identify at the outset what this work argues against. Throughout the thesis, explicitly or implicitly, the suggestion that jus post bellum does not exist is rebuffed, as is the idea that it has no content. In the introduction and conclusion to Chapter 1 (Past – The Deep Roots of Jus Post Bellum) the claim that the just war tradition is devoid of discussion of the subject matter of jus post bellum or that discussing the just war tradition is meritless is specifically rejected. Chapter 2 situates jus post bellum with its sister terms, jus in bello and jus ad bellum. The particular content and contours of jus post bellum are explored in Chapter 3 (Three theories of Jus Post Bellum) and Chapter 4 (Present – An Exploration of Contemporary Usage). Chapter 4 also specifically rejects the idea that transitional justice, post-conflict international criminal law and jus post bellum are interchangeable ideas. Chapter 5 provides a closer examination of jus post bellum in international and non-international armed conflict. Chapter 6 examines the contemporary legal content of jus post bellum. More generally, the thrust of this work is not to argue for the use of the term jus post bellum, although there are reasons to do so, but rather to examine the law and normative principles of the transition to peace regardless of the terminology used. D. Research questions It is not enough to simply invoke the existence of jus post bellum, as many scholars and practitioners do. Rather, it is helpful to, first, test the existence and meaning of jus post bellum and second, examine the added value of jus post bellum. The overarching 9