- Connecting points between jus post bellum and “just peace”
What are the links between “just peace’” and jus post bellum? We have explored some of them in our final Jus Post Bellum Conference.
One of the first insights is that jus post bellum requires pragmatism and limitation. As Lonneke Peperkamp put it, a just peace should be understood as a “decent peace which is stable for a substantial period of time”. Jus post bellum requires a certain degree of moderation, in terms of its normative ambition, content and operation. It must leave some flexibility to prioritize specific prerogatives, balance conflicting rights and obligations, or sequence response mechanisms.
Some common ground is emerging on macro-principles, and in particular areas.
- Macro principles
An excellent starting point for macro principles is Larry May’s work “After War Ends”. May identified six post bellum principles: These are (i) rebuilding, (ii) retribution, (iii) restitution, (iv) reparation, (v) reconciliation and (vi) proportionality. Approaches in these areas have shifted considerably over past decades.
“Rebuilding” was initially contemplated as a core element of the Responsibility to Protect The idea of a “responsibility after protecting” is still contested. But it is increasingly recognized that post-conflict peacebuilding requires a communitarian effort that goes beyond the society affected. As rightly emphasized by James Pattison elsewhere, the principle “you broke it, you own it” is an unsatisfactory answer. Rebuilding must be linked to a broader conception of international assistance and solidarity. International and regional organizations should support parties to a conflict to meet such responsibilities. This is line with Goal 16 of the Sustainable Development Goals, i.e. to promote just, peaceful and inclusive societies.
The understanding of “retribution” has evolved. Retribution cannot be understood as “vengeance’. For instance, the ad hoc tribunals have made it clear that individual criminal responsibility involves fair and balanced approach to the punishment of wrongdoing, including a “principle of restraint”. As the ICTY put it in Nikolić, “retribution requires the imposition of a just and appropriate punishment, and nothing more”.
Reparations are instrumental for peacebuilding. In contemporary practices, they no longer solely mediated through the state or confined to claims by individuals against states. Experiences of UN claims mechanisms and certain international criminal tribunals (ICC, ECCC) show that duties may also arise in the relationship between individuals. Cymie Payne illustrated how reparations extended to the restoration of the environment in the practice of the UN Compensation Commission. However, it remains unsettled how injuries should be treated that are caused by acts that are not prohibited by international law.
“Reconciliation” is typically accepted as an aspirational goal, namely as a means to re-establish trust in norms, institutions and civic community. Its precise meaning remains contested. Drawing on Dworkin’s theory of integrity, James Gallen argued that reconciliation should be primarily understood as civic discourse in a post bellum context, namely as an instrument to empower affected victim-survivors and to identify legitimate areas of disagreement. Catherine Turner pleaded for a broader principle of inclusivity in peace processes, drawing on human rights instruments.
Michael Newton made a case for the distinction of proportionality under jus as bellum and jus in bello from jus post bellum proportionality. While the first two principles are restrictive in nature, i.e. limiting behavior, jus post bellum proportionality has certain permissive features, for instance, by calling into question initial mission statements.
Prevention remains one of the underdeveloped principles. It relates to the understanding of peace as a continuum. It cuts across all three areas: ad bellum, in bello and post bellum.
- Peace and security
Close synergies between jus post bellum and just peace exists in the field of peace and security.
It remains difficult to ground “hard law’ in state practice. But, as Dieter Fleck argued, in this field, opinio juris might have greater value in the formation of customary rules or principles than state practice. He showed that essential norms of protection in conflicts continue to be relevant to post-conflict peacebuilding, including principles and guidelines for the protection of detainees, the security of peacekeepers, and the protection of the environment. He stressed that jus post bellum requires due diligence during military operations, including responsible planning and precautions, and pragmatic limitation, conciliation and participation in post-conflict peacebuilding.
Jus post bellum may serve as an instrument to re-think contemporary approaches towards peace and security. Martin Wählisch argued that “imperfect” peace is better than “just war’. He pointed out that the UN peacebuilding architecture contains six “process principles”: national ownership, inclusivity, rule of law, effective leadership, coordination and accountability. Marco Longobardo noted that robust mandates, such as in the cases of MOUNSCO (DRC) and MINUSMA (Mali), make respect for post bellum principles more problematic. Patrick Wall undertook a study of peace agreements signed between 2000 and 2010. His analysis suggests the presence of independent mediators in peace arrangements may enhance compliance with crucial aspects of the law of peace, such as self-determination, accountability, demobilization or reconciliation.
- Protection of persons and public goods
The protection of persons and public goods is a second area in which there is a close interconnection between jus post bellum and “just peace”.
There is broad agreement that the interests of specific groups require special attention in transitions from conflict to peace. The link between peace and protection of right of peoples is recognized in various UN instruments, including the 2016 Declaration on the Right to Peace, adopted by the Human Rights Council.
One particular aspect is the right of indigenous populations. Britta Sjöstedt analysed the relationship between indigenous peoples and protection of the environment in post-conflict settings. She argued that the link between biodiversity and human cultural diversity may be a future path to protect the land of indigenous peoples. She deplored that the existing ICL Draft Principles on the Protection of the Environment in Relation to Armed Conflicts miss out on restoration, liability and redress for indigenous people.
Eugene Kontorovich examined the transitional and post-conflict treatment of settlers. He argued that settlement is the rule, rather than the exception in most occupations. He proposed citizenship or permanent residence as a potential solution.
Elisenda Calvet and Aitor Diaz analysed the treatment of land, housing and property issues of displaced persons in post-conflict settings – a topic addressed in the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles). They showed that only 18 % of peace agreements specifically address economic, social and cultural rights, and only 10 % deal with land issues. They argued that the combination of restitution and compensation may be the best option to deal with this challenge.
Yousuf Khan addressed the protection of cultural property – an area that has received further attention with the Al Mahdi judgment of the ICC. He argued that protection of intangible cultural property might be as important as protection of tangible property.
- Rule of law policy and institutional practices
Rule of law approaches remain a subject of ongoing controversy in post-conflict settings. Legal regimes in some areas, such as governance, justice or human rights may require adjustment in order to accommodate the collective nature of violence or the specific tensions of transition.
Alexander Mayer Riekh examined the place of vetting in transitions – an area in which OHCHR has formulated operating guidelines. He argued that vetting can produce positive effects prevent recurrence of violence, if it is respectful of human rights, part of a fair human resources management system and embedded in an overall endeavor to build accountable public institutions.
Michael Pugh analysed lessons in another neglected area, namely economic policy and the protection of labor rights. For instance, UNMIK established transitional labor regulations in Kosovo. Pugh argued that some of the approaches in relation to labor rights run counter to the idea of “peace from below”. He also claimed that post war development policies of international financial institutions, such as the IMF, are largely a continuation of pre-war conditionalities.
Jens Iverson addressed the challenges of democratic transition. He argued that jus post bellum is not necessarily neutral with respect to the post bellum regime type, but rather that it can have a preference for a transition to democratic governance after conflict.
Accountability is one of the most elementary elements of the justice of peace. Approaches towards accountability vary from context to context. It often disputed how the right of a society to pursue peace may be reconciled best with the demands for justice, and what approaches are most suitable for a specific process of transition.
Mark Osiel examined the interplay between individual and collective responsibility. He argued that focus shifts, depending on the orientation of responses to atrocity crime. There is a tendency to individualize the wrongdoer for purposes of retribution and deterrence, while collective orientations prevail in approaches towards compensation, security sector reform or transitional justice. Similarly, approaches towards victims navigate between individualization and collectivization.
Timothy Webster highlighted the difficulties of post-conflict litigation. He showed that most efforts to receive reparation through civil litigation after World War II have remained unsuccessful. He claimed that litigation can have an important discursive function, namely by helping plaintiffs to work through their experiences, and by addressing certain historical, legal and moral blind-spots.
Maj Grasten illustrated the politics of justice, in particular discrepancies between “village justice” and victor’s justice in Kosovo. She argued that accountability approaches navigated between three different poles: rule of law as technicality, rule of law as political stability and rule of law as a principle of legality.
Mark Freeman examined lessons from the negotiation of justice in peace settlements. He argued that jus post bellum requires three pillars: negotiation, agreement and implementation.
Marieke Wierda analyzed the relationship between peace and justice, including the Colombian experience. She asked whether the Colombian peace deal with the FARC marked an attempt to create “peace with maximum justice” or a “modest paradigm shift”. She argued that the ICC may be most effective if it is in shadow, rather than in the spotlight.
- Not a conclusion
Some general lessons may be learned from these insights.
First, jus post bellum encompasses different dimensions: ‘exit” out of conflict, establishment of a new order, and general peacetime and prevention strategies. Each of these areas involves distinct challenges and different normative conflicts in relation to the establishment of “”just peace”, as well as different actors and addresses of jus post bellum.
Second, the international community is good at creating ad hoc responses or novel institutions, mostly with a deeply liberal focus, but much less good at devoting long-term sustained attention and resources that are necessary to ensure that they are effective. There is often a strong focus on accountability and retributive or restorative justice mechanisms, while socio-economic dimensions of transitions, and broader challenges of distributive justice remain sidelined. The role and effects of international financial institutions and business actors remain crucially under-examined.
Third, it is fundamental to treat “exit from conflict” as a process rather than as an event. Negative peace, i.e. the absence of armed conflict, is be enough. Self-sustaining peace may require measures to preserve partial gains or minimize losses, including control of spoilers of peace, follow-up action aimed at the stabilization of political and economic conditions, ex post monitoring of peace arrangements, and the continued protection of witnesses and victims.
Taking this more seriously may lead to better improvisation in future crises, or at least better forms of failure.