Of Jus Post Bellum and Lex Pacificatoria
Of Jus Post Bellum and Lex Pacificatoria
What’s in a Name?
Abstract and Keywords
This chapter discusses whether a jus post bellum regime operating across different types of conflict is possible and desirable, and if not, how we should best situate and respond to contemporary developments in international law relating to terminating intra-state conflict. It explores what arguably has been the main driver of the legal concept of jus post bellum: the relationship between law and practice in contemporary peace negotiations in deeply divided societies. The chapter argues that a dynamic relationship between law and practice has generated novel interpretations and even mutations in the relevant international law so as to give some substance to arguments for a “third way” regime, or lex pacificatoria. The chapter considers whether it is firstly possible, and secondly desirable, to try to “complete” and develop this lex pacificatoria into a clearer set of legal standards and even a new regime such as a jus post bellum.
Contemporary discussion of the term jus post bellum has emerged through two key disciplines. The first is that of philosophy, where philosophers, mainly North American, have been provoked by the questions raised by US-led military intervention in Iraq, and to a lesser extent Afghanistan, to consider how just war theory might apply post international intervention. Here the approach has been to try to locate an articulation of jus post bellum as an obligation of repair and reconstruction that would extend the just war tradition, as typified by the work of Walzer, Orend, and May.1 The second discipline has been that of international law and engagement with jus post bellum as a legal project that attempts to define and articulate a better international legal regulation of post-conflict landscapes. A holistic approach to this second project has been pursued most notably by Carsten Stahn and the Leiden School, whose stated ambition is to move toward a jus post bellum legal regime that would stand as a third dimension to the current jus ad bello and jus in bellum, so as to regulate the management of post-conflict societies.2 This legal fashioning of a jus post bellum is conceived as applying across a range of quite different post-conflict contexts: civil wars, other internal conflicts that do not meet the scale of civil war, and the internationalized constitution-making and restructuring processes that have succeeded international military interventions in Bosnia, Kosovo, Afghanistan, and Iraq.
This chapter largely leaves aside the first philosophical project to interrogate seriously the second. I aim to contribute to the discussion of whether a new jus post bellumregime operating across different types of conflict is possible and desirable, and if not, how we should best situate and respond to contemporary developments in international law relating to terminating intra-state conflict. (p.182)
In Part II, I begin by exploring what I argue has been the main driver of the legal concept of jus post bellum: the relationship between law and practice in contemporary peace negotiations in deeply divided societies. I argue that a dynamic relationship between law and practice has generated novel interpretations and even mutations in the relevant international law so as to give some substance to arguments for a “third way” regime. I suggest that the current legal state of play is one of partial legalization and normative shifts that are uncertain and often lack formal binding legal status. Drawing on my earlier work, I term these shifts a new lex pacificatoria, in an analogy to lex mercatoria, to attempt to capture: first, the clear legal effect and import of these mutations; second, the ways in which they do not derive primarily from international lawmaking processes and jurisprudence, but a dialectical interaction of international law and the practice of peacemakers (international and domestic); and third, the legal status of new normative understandings as “developing” rather than developed law, whose normative pull stands somewhere between the realm of law and politics.3
In Part III, I consider whether it is firstly possible, and secondly desirable, to try to “complete” and develop this lex pacificatoria into a clearer set of legal standards and even a new regime such as a jus post bellum. I argue that while the discussion of jus post bellum provides a useful way to explore gaps in how international law deals with peace settlements and the implementation issues they raise, it is neither possible nor desirable to develop emerging legal innovations into a fully-fledged legal regime. In other words, I reject a project of developing and clarifying a holistic jus post bellum as a regulatory legal framework for transitions from conflict to peace. I suggest as an alternative a role for international law of articulating broad normative parameters that operate to hold open spaces of negotiation and contestation about the outcomes of transition and the meaning of core goals such as peace, democracy, legitimacy, and accountability.
In the final Part IV of the chapter, I attempt to situate the relationship of the conversation to alternative attempts to conceptualize the post-Westphalian legal order, showing how different conceptions of that order point to quite different assumptions for how one might situate and respond to jus post bellum.
II. Pushing International Law’s Boundaries: Negotiating Peace Settlements
Contemporary philosophical discussions over a jus post bellum have been triggered by crises over international military intervention in Iraq in particular and an attempt to examine both the obligations and the justifications of interveners post-conflict.4However, contemporary legal approaches to jus post bellum have been generated in response to a wider context of peace negotiations and the moral, political, and legal issues that surround them, although in recent times they have come to focus more (p.183) narrowly on the philosophical questions relating to foreign intervention.5 These peace negotiations have resulted in over 700 peace agreements arising in over 90 countries—a large-scale practice that has been remarkably successful in reducing the level of violence globally.6 This practice interconnects with jus post bellum discussions focused on international military intervention where international post-conflict reconstruction involves brokering peace settlements (usually as constitutions) in the divided societies that remain. An approach to jus post bellum that focuses on peace settlement practices thus also addresses the dilemmas of these post-international intervention reconstruction processes, connecting with the subject matter of philosophical approaches.
I contend that the key driver for what appear to be the beginnings of a legal jus post bellum has been the interface of the practice of peacemaking with international law. The post-cold war peace settlement context has required international law to mutate in order to regulate the mediation and implementation of peace settlements. Both the pressure for a jus post bellum and what might be viewed as its developing content have emerged from a dialectical interaction of international law with peace processes. Three aspects of peace negotiations in divided societies experiencing protracted social conflict have been critical to producing this mutation.
The first is that contemporary peace negotiations have typically included all those waging war and result in peace agreements that contain fundamental compromises between competing conflict goals and competing conceptions of what would constitute a “just peace.” The second aspect is that while historically negotiation of conflicts arising primarily within states were understood to be essentially a domestic political matter, contemporary peace negotiations involved international actors and organizations and have been understood (increasingly over time) to be governed by international law, chiefly international human rights law, international humanitarian law, and, more recently still, international criminal law and the UN Charter itself. The third factor is that these negotiations have aimed to produce formal, legalized peace agreements, typically signed between the parties to the conflict and a range of international actors and organizations, that serve both as a form of contract or legalized road-map of the parties’ commitments to each other under the color of international law. The agreements typically “contract-in” aspects of international law—either explicitly or by using wording taken from such standards—to govern inter-party relationships and implementation tasks.
These three factors have led to a process of dialectical interaction between international law and peacemaking practice. This dialectic has revolved around three core difficulties of “fit” between international legal frameworks and post-conflict environments, which has been jurisgenerative of new understandings of how international law can be understood to apply. The first difficulty of fit is one of fitting “hybrid” solutions of peace agreements within the traditional boundaries between international and (p.184) domestic law. Typically, solutions to protracted social conflict in deeply divided societies have required peace agreements to address both the internal configuration of the state’s domestic constitutional order (internal self-determination) and its external articulations to sovereign statehood (external self-determination). Conceptually, hybrid negotiated settlements that address both the internal and external legitimacy of the state, are enforced by a hybrid tapestry of mechanisms in which international actors “guarantee” the peace agreement’s implementation, working alongside domestic actors to build the new polity.7
The second difficulty of “fit” is the difficulty of war-peace hybridity: typically post- settlement contexts exhibit a “no-war, no-peace” landscape that requires international actors to work with the consent of the parties to the conflict, now re-cast as joint implementers of the new order, but also on occasion requires them to robustly enforce commitments in the face of local recalcitrance. This landscape poses difficulties for UN Charter authorization of international intervention because it defies the distinctions on which the Charter relies, such as: between war and peace, between international and domestic threats to peace, and between consent-based intervention and non-consent based use of force. War-peace hybridity also makes it difficult to establish whether international humanitarian law, international human rights law, or some type of merged regime governs the post-conflict period and the issues of authorization and accountability that arise.8
The third difficulty of fit is the difficulty of international law regulating a move from private corporate use of state power to normative restraint and legitimation as public power, which is being attempted at the domestic constitutional level. In peace processes, international law and international actors inevitably engage with how to achieve a shift whereby political-military elites engaged in private exercise of power for one section of society become public actors, using public power governed by law, in pursuit of the common good. Achieving such a shift involves difficult political judgments that increasingly play out under the cover of legal argument. A tension between private and public interests plays out across peace implementation debates, such as tensions between individual electoral rights and group rights relating to effective participation of groups.
A. New emerging law
Each of these issues of “fit” have generated a mutation in understandings of how international law had to be reconceived so as to regulate this new landscape. These normative shifts point to the need for some sort of alternative approach to existing legal regimes, such as is suggested in jus post bellum literature. However, the mutations of international law also point to a possible emergent substantive content of any new jus. For (p.185) purposes of time and space, and because I have addressed the matter in detail elsewhere,9a short outline of this dynamic will be provided rather than its full explanation and defense.
In short, an emerging “law of the peacemakers” or as I have termed it, lex pacificatoria, can be argued to have developed in six key areas.
1. A new law of self-determination. The dialectic of law and peacemaking practice has significantly revised the application of self-determination law. Self-determination conflicts have been notoriously ill-served by a law that seems to promise states territorial integrity and non-state actors representative government—often understood by them as requiring secession.10 Peace agreement negotiations have moved to reconcile self-determination law’s competing pillars of territorial integrity and representative government by incorporating aspects of internal self-determination and new domestic constitutional structures with aspects of external self-determination as a revision of the state’s conception of its external legitimacy.11 Two key devices have been central to this move: first, the disaggregation and devolution of the power of the state and modalities of government into group right regimes; and second, the establishment of “fuzzy sovereignty”—hybrid solutions in which sovereignty is dislocated from the state as traditionally conceived, into novel forms of bi-nationalism, or internationalized regimes.
In substance, the new approach to self-determination prioritizes negotiations between states and non-state opponents as a way of resolving self-determination disputes and encourages substantive solutions that address the internal configuration of the state as a polity, so as to include the state’s opponents in structures of government. At the same time, peace agreement solutions include devices and language that make the sovereignty of the state less categorically linked to its traditional territorial configuration.
While these revisions have arisen as a matter of political negotiation, and arguably are primarily a political rather than a legal development, crucially they are underwritten by both hard and soft law standards that promote inclusion and group rights.12 At a deeper level, these new practices can assert themselves to constitute a novel new application of the self-determination legal norm that serves to transcend and therefore reconcile the norm’s inherent tension between territorial integrity and representative government: the new law attempts to transcend demands for external self-determination as remedy (p.186) and internal self-determination as remedy by fashioning hybrid political solutions that combine both these elements.
2. A new law of gender inclusion and inclusion more generally. Processes of peacemaking focused on politico-military elites who were for the most part men have also come under pressure from transnational feminist mobilization and increasing international unease around handing over what are essentially constitution-making processes to politico-military elites. The more peace processes and peace settlements have been understood to provide not just for ceasefires, but for broad constitutional road-maps which shape and constrain future democratic and constitutional development, the more they have come under pressure to open up participation. Most notably, legal standards have emerged which require the inclusion of women in peace negotiations and that post-conflict equality concerns are addressed. Chief of these is UNSC 1325 (and its successors) which, among other things:
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.13
These developments can be viewed as the beginning of a process of international regulation of inclusion in peace and constitution-making processes—albeit one that lacks serious enforcement mechanisms. However, inclusion standards also aim to open up state-making processes beyond the corporatist deals between politico-military elites, to wider public legitimacy.
3. A new law of return of refugees and displaced persons. Traditionally, international refugee law did not focus on a right to return, either to the country of origin or own localities and even homes. Peace agreement practice, now backed up by emerging soft law standards, however, has tended to establish a “right to return” to one’s own country, locality, and even home, or to be compensated.14 This right is argued to apply with respect not just to those with formal refugee status but also to displaced and internally displaced persons. These standards together with peace agreement clauses provide for:
• a right to return to one’s country and even locality;
• a right not to be returned where conditions are not safe;
• a right to return to own homes or to be compensated where this is not possible;
• a right not to be discriminated against, having returned, and to political, legal, and physical security;
• a requirement on parties to the conflict to cooperate with the relevant agencies to ensure safe and voluntary return;
• a right to be included as a group in decisions about return, including in the peace negotiations themselves.15
They exist, however, largely as soft law, with arguments that traditional human rights also can be re-interpreted as requiring much of the same provision.16
4. A new law of transitional justice. While traditional approaches to accountability saw amnesty as a matter of the domestic law of the state, an evolving interaction of peacemaking practice with international human rights law, international humanitarian law, and more recently international criminal law, together with the production of soft law standards in particular relating to the rights of victims, has generated a “new law” of transitional justice that views serious international crimes in internal conflict (as well as international) as no longer capable of being amnestied.17 This new law also views some type of settlement-inducing amnesty as permissible and even desirable.18It also acknowledges the rights of victims to reparation.19 The new law, however, leaves largely undefined whether and what practices of amnesty are permissible in the “gray” middle area—and this gray area is also constantly shifting as the predominance of one or other poles asserts itself and is contested.20
5. A new legal approach to understanding “consent” and international intervention post-settlement renewed conflict. The contemporary post-conflict environment relies heavily on a diverse range of international actors to carry out a diverse range of peace (p.188) implementation functions. These functions can be categorized in terms of four broad tasks: policing demobilization and demilitarization; guaranteeing and implementing an internal constitutional settlement; mediating its development; and administering the transitional period in some form. The scale and nature of international intervention is varied, ranging from forms of low-level peacekeeping, to ad hoc international involvement in domestic institutions such as hybrid courts, to full-scale international administration.21
As regards UN intervention for the preservation of peace, the UN Charter provides for consent-based and non-consent based (forcible) intervention in Chapters VI and VII that is inapposite to the peace implementation context. In short, the Charter framework contemplates a clear sovereign independent state, capable of giving or withholding consent and clear distinctions between peace and conflict and between international and non-international threats to peace. Post-agreement ambiguity over “who” constitutes the state, and whether the war is over, means that such clarity seldom exists in periods of post-settlement transition.
While little clearly articulated “new law” has emerged, UN attempts to grapple with the lessons learned through different interventions have illustrated an on-going attempt to redefine what constitutes a threat to “international” peace, what constitutes “consent” in a post-settlement terrain government by a peace agreement/contract between the different parties to the conflict as to a re-configured government, and how to understand and redefine concepts of neutrality and impartiality in the peace implementation context.22 Central to the attempt to “fit” the international legal framework for intervention to peace-implementation practice has been the attempt to navigate a middle ground between Chapters VI and VII that would view consent as desirable but retain some capacity to switch to force-based action in the event that a party to the settlement is recalcitrant.
However, the implementation tapestry of international involvement is very diverse. A wide range of international organizations beyond the UN intervene in a range of ways not requiring UN authorization, often “contracted in” and authorized by the peace agreement itself, but with their actions otherwise governed only by their own constitutions (provided of course that they do not contravene the Charter).23
A practical pressure to reconfigure understandings of the legal basis for legitimate international intervention derives from the need for international actors, focused on “implementing” democracy and the rule of law, to be able to articulate (p.189) a legal basis for their own intervention—particularly when faced with recalcitrant parties.24
6. A new approach to questions of accountability of the international actors engaged in peacekeeping and the implementation of peace agreements more generally.Traditionally, the spheres of operation of international organizations and the sphere of the domestic state were understood to be distinct. The accountability of state actors was through the framework of the state’s institutions and accountability of international actors through the framework of the international organization’s institutions. In so far as international organizations committed wrongs within states, any accountability was contemplated to flow from the international organization to the state; however, when and how accountability applied remained controversial, depending on matters such as the relationship between the organization and its member states and what acts were attributable to the organization.25
Again, these assumptions are inapposite to post-conflict scenarios and tasks and have forced the attempt to look for new legal solutions. The tapestry of international involvement in peace settlement implementation tasks, as described above, gives rise to questions of third party accountability for violations of international law with respect to local populations. Two international exercises of power in particular give rise to such demands: the use of coercive force (including detention, torture, sexual violence, and lethal force) and the exercise of what are normally the powers of government.26The diversity of international intervention, both in terms of the large number of different international organizations that now intervene fairly routinely in peacemaking and building tasks, and in terms of the range of functions they undertake, have led to pressure to develop more appropriate legal standards—often on an ad hoc basis—to deal with the accountability issues that arise.27 It is beyond the scope of this chapter to document these, save to note two broad trends. The first trend is that the longer international actors remain, the more there is pressure to hold them directly to account (p.190) with international actors often conceding new mechanisms, in part because to fail to do so reduces their legitimacy and effectiveness with respect to the local actors they are trying to influence. The second trend is that it has proved fairly impossible, and seems likely to so remain, to design broad mechanisms of accountability capable of dealing with all the types of interveners and covering all their possible functions. International law—ad hoc or otherwise—just cannot keep up with the case-by-case innovation in peace-implementation practice.28
7. Other potential “new law” areas? Two other potential candidates for a new jus post bellum deserve a mention. The first is that of an over-arching obligation to reconstruct post-international intervention. Increasingly, lawyers are moving to interrogate whether law provides for the kind of moral obligation that theorists argue exists.29 Such an obligation might provide an over-arching framework from which to develop law in the same manner as the prohibition on the use of force. Scholars largely agree that such an obligation does not exist, but note the existence of a relevant regulatory framework regarding re-construction acts.30 In practice, the lack of an over-arching enabling obligation has not prevented re-construction and on-going intervention post-international conflict, which has taken place as a matter of course, with international actors sometimes viewing humanitarian law of occupation as the governing legal frame, and sometimes human rights law.31 In practice, both have required amendment so as to facilitate a project of “transformative occupation.”32
The second area concerns rules governing the conduct of peace negotiations themselves. Existing laws of war contain fairly rudimentary regulation of the conduct of peace negotiations, with protection of the white flag and a prohibition on perfidy (or treachery), that attempt to preserve the possibility of negotiations by requiring good faith.33 These rules have received little attention in the context of intra-state conflict where there is some evidence that the imperative to prosecute serious war criminals has displaced the idea that negotiations should be conducted in good faith and that their provisions should be honored. To give some examples: Charles Taylor was arrested on the back of a secret indictment on his way to peace negotiations relating to Liberia—albeit for offences committed in Sierra Leone; the Special Court for Sierra Leone had little qualms about rejecting arguments of abuse of process and over-turning an amnesty agreed in writing (p.191) in a peace agreement between local protagonists but also international actors;34 and, more anecdotally, mediators in closed sessions appear unconcerned with equality of arms issues that see non-state actors (many admittedly with nasty pasts) sign blanket amnesties that, unknown to them, are unlikely to be honored. Where accountability of war criminals is at stake it seems that concerns about perfidy do not apply.
B. Combined or separate registers? moral philosophy, politics, and law
It is worth pausing at this point to emphasize that this emerging “new law” is derived from examination of legal mutations provoked by peacemaking practice, rather than conceptual analysis of what an ideal jus post bellum should look like. Emergent new legal understandings have evolved from attempts to consider how seemingly relevant standards of international law might be understood to inform peace settlement compromises. Yet, the normativity of these settlements can be evaluated with reference to three quite different normative frames, each of which suggests a different direction and set of constraints with respect to developing the law. The first is a frame of justice, which views a normatively just peace as the priority, with reference to human rights, humanitarian law, and international criminal law as creating ideal demands from which departure must be strongly justified. The second frame is one of conflict resolution, which views the need to end the conflict as the dominant normative imperative, and views international law to be interpreted and applied so as to give effect to this over-riding normative imperative. The final frame is one that views the achievement of a particular political outcome, such as liberal democracy, as the dominant normative imperative, and could tolerate departures from international legal standards if it could be understood as necessary to that end goal. From this final frame the demands of both law and conflict resolution are viewed as instrumental to this larger aim of producing a normative political order.
These three normative frames can be viewed as propelled by three different peacebuilding imperatives: imperatives of justice as universal principles; imperatives of short-term conflict resolution; and long-term democracy-building imperatives. Each imperative can articulate itself within the language of the other: justice claims can be presented as conflict resolution imperatives (without justice peace has no content), or imperatives relating to liberal democracy (e.g. as a rule of law requirement), while conflict resolution imperatives can be re-framed in terms of justice concerns that aim to create an even playing field between parties. Each set of imperatives is tightly inter-linked with reference to the dilemmas of crafting and implementation of peace settlements. However, at different stages of negotiations different imperatives pull in different directions, leading to demands that each needs amended in the light of competing imperatives. The emergence of the new lex pacificatoria is in part produced as a result of this pressure. The area of transitional justice illustrates: classically, the tension between demands of accountability and demands of amnesty can be understood (p.192) as a tension between principle (accountability as set out in international humanitarian law and international human rights law) and pragmatism with relation to conflict resolution. However, the justice versus peace tension can also be argued to reflect a clash of principles and difficulties in deciding which should be prioritized: the principle of accountability for past acts or the principle of protecting the right to life in the future. The tension can also be understood as a clash of pragmatic imperatives, and the tension between conflict resolution as a negative attempt to stop the fighting in the short term and conflict resolution as a need for long-term liberal democratic structures and the rule of law as on-going mechanisms for stability in the long term. Ultimately, the idea that international law suggests a measure of accountability as tempered by a measure of amnesty enables attempts to find creative ways to move beyond genuine dilemmas over what best serves peace. The attempt to navigate between these different demands has produced a range of interpretations by human rights bodies and a range of soft law standards. While over time these standards have emphasized the need for accountability, even as they move toward the accountability pole to demand prosecution and punishment, pressure comes to bear from conflict resolution imperatives that reinforces the permissibility of some forms of amnesty.35 And so, the law continues to suggest in broad terms a middle gray area in which some form of justice must be delivered but can be done so concomitantly with some level of amnesty.
C. The uncertainty and instability of the new law
To summarize my proposition thus far: I have argued that the attempt to apply international law to transitions from conflict has produced reinterpretations of key international legal doctrines which operate to reshape what are understood to be the boundaries of international legal regimes and, indeed, international law itself. The attempt to use international law to regulate peace agreement settlements and their implementation has been argued to require new accounts of how international law applies and what it demands. These new accounts have re-worked the scope and concerns of core international legal regimes, such as refugee law, human rights law, and humanitarian law, so as to address the peculiar political dilemmas of transition. I have termed these new developments a new lex pacificatoria or “law of the peacemakers,” as an alternative to jus post bellum, for reasons I will elaborate on, but in part because the term marks that these apparent shifts in international legal doctrine stand somewhere between law and practice.
The developments are partial and unstable and it remains unclear whether the interpretations will be sustained, developed, or rolled back. The new lex does not operate as a clear new legal regime establishing a set of legal obligations but rather as a set of programmatic standards that provides guidance and, at times, goes further in creating a normative expectation as to how the dilemmas of peace settlements can be resolved concomitantly with the requirements of international law. These programmatic standards can be gleaned from an eclectic set of sources: novel interpretations of human rights and humanitarian law that respond to peace agreement dilemmas, new soft law programmatic standards, the convergent practices of peace-makers as contracted (p.193) to legalized peace agreements, and ad hoc standard setting with relation to specific conflicts.
In none of the six areas discussed are the new legal developments fully established, consistently enforced, or stable: different areas are undermined by different difficulties. The new law of self-determination and transitional justice both indicate developments whereby a “mid-way” law has been developed between more extreme positions of what the law is or should be. With self-determination, the new law fashions a mid-way position between positions of “no legal right to external self-determination outside colonial self-determination” and “a new revised norm of self-determination that permits secession in cases of extreme human rights abuse.” With transitional justice the new law fashions a space between positions of “no amnesty for serious international crimes” and “amnesty should always remain a part of the negotiator’s tool kit.” In each of these areas, the compromise position operates as a holding device between different conflict resolution and legal imperatives in which the parties to the conflict can negotiate a compromise. In other areas of “new law,” new norms are clearly established but without clear standard-setting and enforcement: laws of return and gender inclusion remain new and exhortative although attempts to develop them further are ongoing. In yet other areas of new law—notably that of accountability of peacekeepers—any emergent re-interpretation or extension of existing norms and forms of accountability is both ad hoc and piece-meal. This piece-meal approach in part arises because of political difficulties of holding international actors accountable to local population. But it also derives from the impossibility of designing norms that would provide a coherent framework of accountability capable of general application across all intervention contexts, to all people, for all functions. The shape of international intervention is too innovative, diverse, complex, and fluid to be amenable to holistic regulation in generally applicable standards.
III. From Lex Pacificatoria to Jus Post Bellum?
The question remains, therefore, as to whether this lex pacificatoria could be refined, stabilized, and built upon to create a coherent legal framework for peace settlements: in other words, could we develop a new coherent regime, as has been suggested in jus post bellum literature? The very partiality and instability of the lex pacificatoria means that it is indeed tempting to view it as a lex ferenda, or “developing law,” whose natural trajectory would seem to be toward a more established lex lata in the form of a fully worked out body of law capable of regulating transitions from conflict. We might, from this perspective, view the lex pacificatoria as lex ferenda and jus post bellum as its possible future as imagined new lex lata. I now turn to set out why I nonetheless view the project of development and clarification as both impossible and undesirable.
A. Naming as conceptualizing
Before considering whether and how the legal developments should be further codified, I wish to address the question of naming any imagined new lex lata a jus post bellum. From one point of view, we need not be too concerned at this stage with how to name (p.194) any possible new regime—the important matter is to decide whether there should be one and what it might comprise. However, naming legal developments also categorizes them and situates them within the international legal system with consequences for how we conceive of their relationship to existing branches of international law.
At a simple descriptive level the term jus post bellum appears inapposite to the practice of peacemaking. The legal gaps that need to be addressed by law do not manifest themselves post-conflict but during the process of settlement itself. It is relatively easy in inter-state conflicts to define the post-bellum period as that beginning with the formal conclusion of the international military conflict. However, if one examines contemporary inter-state conflict such as in Kosovo, Iraq, and Afghanistan, this period is less obviously post-bellum in terms of violent conflict within the state in which international actors inevitably become involved. The task remains one of resolving an intra-state conflict.
In more classic intra-state conflict, negotiations of an end to fighting often required agreement over the post-settlement political and legal institutions: the negotiation of a formal indefinite ceasefire requires the negotiation of some sort of constitutional road-map containing commitments relating to self-determination, inclusion, government, constitutional structure, and the return of displaced persons. Also included are issues such as whether amnesties are given or accountability mechanisms put in place and whether displaced people are to returned or re-settled. An end to intra-state conflict will only be forthcoming if the parties are satisfied with what they are able to negotiate with respect to the post-conflict settlement. The regulation of transition, therefore, involves the regulation of peace settlement terms as well as the environment that follows. This environment is circumscribed by compromises agreed in the peace agreement text—shaped by balance of power between the parties—which continue to dominate arguments over how international law should apply.
Of course this objection to jus post bellum as a term could be dismissed as a semantic quibble: if some sort of even partial ceasefire is called to enable talks, then the period of negotiation could itself be understood to be part of the post-conflict period and the content of a peace agreement the subject of jus post bellum regulation. There is little point, it could be argued, in taking the descriptor post bellum too literally by tying it too tightly to a preceding ceasefire—we could understand a jus post bellum more flexibly as dealing with peace negotiations themselves.
Yet, a deeper objection to the term jus post bellum remains: the term jus post bellumlocates the project as a part of the laws of war. The idea of a jus post bellum draws its name from the two-part division of the law of war into jus ad bellum and jus in bello. It suggests adding a third jus post bellum in a tri-partite division that would complete the two existing bodies of law by providing for the regulation of the post-conflict terrain. The name jus post bellum locates regulation of post-conflict environments as part of the law of war. In so doing, it begs the question of how this “interim” period between war and peace relates to the larger two-part division of international law into the laws of war and the laws of peace. If we return to Grotius, he divides international law into the laws of war and the laws of peace, with the law of peace largely everything that is not the law of war—the regulation of non-conflicted relations between states.36 The period at the (p.195) end of a conflict until some specified point thereafter could be considered as the final stage of the conflict: albeit aberrational in terms of a strict application of the laws of war because it requires addressing how best to terminate and mop up the conflict. However, this period could also, of course, be considered the first stage of a law of peace: albeit aberrational from normal peaceful relations and doctrines because peace is contingent and partial. Interestingly, the etymology of the term “peace” as “pact” or “pax” speaks to a conception of peace as an aberration to a normal context of war, in which the pact constitutes an interregnum that is initially aberrational and temporary.37
The label jus post bellum is arguably spiritually wrong because it locates the project as one of regulating the post-conflict terrain with regard to the continued, if mediated, framework of the laws of war, rather than asking what it would mean to regulate the space between war and peace.
This problem is more than spiritual or semantic. The term jus post bellum in foregrounding the project as one of continued regulation of the vestigial dimensions of conflict, reinforces the conflict as the jurisgenerative frame, and presents the task in hand as one of repair. In contrast, if the legal project is viewed as a project of constructing a transition in the face of contestation between the parties, the dilemmas of transition become the jurisgenerative frame with a focus on the future rather than the past.38Crucially, understanding the space of attempted regulation as a space of transition does not just point to a quite different role of law, but also points to the fact that law and legal argument are themselves implicated in the contestation over the direction and end goals of transition. While the jus post bellum label suggests a project of international law-making aimed at codifying and extending existing laws of war so as to regulate post-conflict tasks, the idea of a law of transition points to a more controversial role for international law in defining the domestic polity and the legitimate ends of transition, when those ends are in part what the parties—domestic and international—require to negotiate between them. Arguments for particular applications of international law, in this context, often relate to parties’ preferred outcomes for transition, whether these are the status quo ante, a completely transformed state structure in which power is radically re-distributed between state to non-state actors, or the mechanisms of liberal democracy that international actors tend to view as centrally required.
B. Is a jus post bellum possible?
Once we recognize that the outcomes of transition are at stake in debates over the application of international law, then we need to acknowledge that international law encounters connected legitimacy and efficacy problems in trying to move conflict resolution in the direction of particular outcomes. International law is not just the subject (p.196) of change, but also the object of contestation. As a result, a number of practical problems impinge on whether a more fully-fledged jus post bellum can be achieved, as will now be examined.
Difficulties of “legislating” in international law
An initial problem of development lies into how to produce new international law. The clearest and most obvious form of an established jus post bellum would be as a new legal regime—perhaps as Orend suggests, a new fifth Geneva Convention.39 It remains unclear, however, who would design and sign up to any new regime. Practices of international law-making are complex and typically protracted. Multi-lateral treaties involve complex and lengthy interstate negotiations that increasingly involve a host of other non-state actors.40 There is no clear will or capacity to agree a new “fifth” Geneva Convention or suchlike, and much danger in opening up contested areas of the existing four Conventions and their Protocols—many of whose provisions are also argued to be anachronistic.
A second problem relates to whether it is possible to craft a new regime that would cover the breadth of the lex pacificatoria as an integrated whole. Where soft law guidance and binding jurisprudence currently exists it relates to one dimension of transition—refugees, transitional justice, gender, or third party accountability. It is difficult to imagine how the developing soft law of these disparate areas could be woven into a coherent, unified formal legal regime capable of regulating all aspects of transition and covering all possible permutations of international intervention.
Even if the will did exist it is unlikely that consensus could be reached on the content of any new regime. Attempts to codify, even in soft law standards, some of the “new law’s” current content—such as principles of transitional justice—have often foundered or produced very vague general principles.41 This failure is not the result of a simple lack of commitment or will. There are real conceptual problems, for example, in producing clearer guidelines on exactly how accountability should be balanced with amnesty. Chief among these difficulties is that of containing the consequence of any new standard for how we understand the underlying legal regimes to apply in less controversial settings. For example, is an explicitly transitional justice to be articulated as an exception to norms demanding accountability or a differentiated application of them appropriate to the transitional state?42 Even the latter conception requires criteria that would contain this differentiated application to the transitional setting. (p.197)
New, rather than no, boundary dilemmas
While the pressure for a new international legal regime arises in part to escape the boundary dilemmas of existing regimes, a new regime would merely present a new set of “boundary” dilemmas. The creation of a third-way regime understood as a third prong of the laws of war appears to remain tied to drawing artificial lines between types of conflict and peace settlement, when the call for new law responds to the perceived need to operate without these types of boundaries.
The first new boundary dilemma concerns what types and scales of conflict the new regime would apply to. The very scale of peace agreement practice illustrates the diverse conflict situations on which a jus post bellum might seek purchase: fully fledged international wars, Protocol II non-international armed conflict, conflict governed by Common Article 3 of the Geneva Conventions, and conflict that falls outside humanitarian law definitions altogether. The types of legal mutation we have examined have arisen in response to all these types of conflict. If the categories of humanitarian and human rights law are to be merged, this opens up a much broader range of conflicts to which the jus post bellum applies, than those engaging only humanitarian law. There are arguments that one should keep a broad approach. As Ní Aoláin and Gross argue, when one reaches lower scales of conflict, there can be little at stake besides the politics of how one labels the conflict legally, in deciding whether a permanent state of emergency or a common Article 3 conflict applies.43 However, as conflict mutates post-settlement the boundaries between international armed conflict, internal armed conflict, and organized crime are becoming increasingly difficult to disentangle and regulate through different regimes. Trying to create a new bounded space between “conflict” and “peace” stands to be artificial and even to obscure the ways in which conflict mutates.
A second associated boundary dilemma relates to how to define a distinct transition in temporal terms. Peace settlements are often only partially implemented, with sporadic or sustained violence re-emerging. Post-settlement is not the same as “post-conflict,” although the literature often assumes that it is. Often, no consensus exists between any of the parties (including international third parties) as to whether a situation is “post-conflict,” or when a distinctive “transition” begins and ends. The fluctuating nature of post-conflict violence indicates a difficulty in deciding when any new jus post bellum might apply. Without a clear sense of such boundaries it is unclear when the differentiated standards of any jus post bellum would begin or end. This question of temporality is not easily resolved. Political science scholars dealing with questions of “democratization” and “transitology” have not found a ready consensus over fixed (p.198) boundaries or criteria that would define clear stages in a process.44 They have looked for these criteria as a matter of good comparative practice rather than a matter of defining when relevant legal standards apply—a purpose that arguably would require an even more impossibly precise delimitation of a beginning and end to transition. Lawyers engaging with the role of law in “transition” have tended to avoid the question of how to define it, largely failing to discuss or theorize what types of transition they are talking about.45
Courts, however, inevitably have to adjudicate boundary disputes. There is a nascent jurisprudence emerging from international human rights courts relating to when transition enables some sort of attenuation of human rights standards: what might be considered an embryonic jurisprudence defining—indirectly—when transition might be considered to be at an end. This jurisprudence illustrates some of the difficulties of any definitive legal policing of temporal boundaries. The European Court of Human Rights, for example, has found restrictions on the electoral participation of former communist party members in formerly communist states to be justified even 15 years into democracy, although they found that the longer the passage of time from authoritarianism, the greater the burden of justification on any restriction.46 Yet in Bosnia and Herzegovina, the Court found consociationalism (or power-sharing) between groups to fall foul of election rights ten years after the conflict’s end because it could not be justified to be necessary to avoid an imminent threat to peace.47 These decisions point to the difficulty of finding legal criteria that would operate across conflicts to define the post bellum period in which some human rights leeway is permitted. They also suggest that the transitional period may be defined differently for different rights, because proportionality tests may play out differently. In other words different post bellum periods may exist for different purposes. More fundamentally, however, the cases raise the question as to whether courts are the competent bodies to make a determination as to when transition ends, given that this decision is one that involves primarily political considerations relating to the local political climate—something that international courts have little capacity or legitimacy in judging.48
The language of jus post bellum appears to contemplate a re-drawing of boundaries rather than their elimination. The new boundaries will inevitably become the subject (p.199) of contestation that will form a part of the broader political picture of contestation over the nature and direction of transition. The language of law and legal boundaries may obscure the political nature of the decision that is being taken. To return to the case law just discussed, it can be argued that beneath an apparent emergent legal articulation of the temporal boundaries of jus post bellum exceptionality, the European Court of Human Rights (ECtHR) in both cases based its decision on unarticulated assumptions relating to whether such measurements could be justified as necessary to achieving a particular liberal democratic outcome. An underlying concept of promotion of liberal democracy can be understood (if not endorsed) to underlie both the decision to allow a restriction on electoral participation for former communist party members, and the decision to roll back group-rights measures in Bosnia Herzegovina. So, a longer more open-ended transitional period was tolerated in the former, where the impact on the individual’s rights were understood by the court to be justified by a need to preserve and build liberal democratic values in the face of an ongoing (non-violent) communist threat; and a shorter period in the latter, where the Dayton Peace Agreement’s consociational mechanisms were understood to constitute a form of “ethnic engineering” that stood in the way of a more “normal” longer-term liberal democratic development. The main point is that in both decisions, the court appeared to engage with questions of temporality, and the length of time passed from the violent or authoritarian past that justified the measure, but on closer examination can be understood to use discussions of temporality to bolster liberal democratic outcomes. Both cases raise the question again as to whether courts can competently and legitimately determine the relationship of the limitations of rights to asserted liberal democratic futures without capacity to engage in a contextual political examination of the existing political structures.49
Rather than pursuing a project of new boundaries, it may be better to consider when and how legal innovation is needed to resolve fundamental conflicts as to the state’s foundations, inclusion in the polity, and its concept of political equality. Recently, the possible boundaries of any jus post bellum have been pushed even further, as a range of settled western liberal states have turned to the language of transition. Some of the language of transition and some of the dilemmas—such as those of transitional justice—present in moves from authoritarian regimes to democratic ones, or even in constitutional transitions in Western Democracies. Recently, settled liberal states have moved to the language and mechanisms of transitional justice to address the legacy of conflicts long past, such as those of Spain’s dictatorship, Australia’s treatment of aboriginal peoples, or even the unaddressed cases of the civil rights movement in the United States.50 In all of these situations, the conflict may be long past, and armed conflict as such may never have existed at all. Arguably, the language of transition is invoked here to assist symbolic moves from one type of state self-understanding to another: an attempt to create a transition in the nature of the state. Innovative extra-legal remedies are (p.200) required because of the passage of time, but also because symbolic as well as real issues of inclusion and state accountability require to be addressed.
Again, the language of jus post bellum in suggesting the need to fashion new legal responses to transitions from war to peace obscures the need for an approach to law capable of understanding its relationship to political transitions defined more broadly and vaguely as transitions from unjust and un-inclusive constitutional pasts to more just and inclusive futures: projects that exist as much as projects of collective political imagination as projects of technical legal and political reform. Strong arguments for innovative legal mechanisms to deal with past human rights abuses arise even in settled contexts, in situations where traditional legal responses—such as those of criminal law—fail to fit political demands for forms of accountability that address not just the conduct of individuals but how the state conceived of itself, how it defined the legitimacy of its constitutional origins, and justified the discriminatory political actions and laws that flowed from its exclusive, discriminatory, and ahistorical self-conception. In other words, peacemaking may continue to be required for a range of conflicts long past, and it may be that rather than either a jus post bellum or even a law of transition in a narrow sense, societies continue to require capacity to generate innovative legal responses to questions of political and legal institutional reform when justice demands are made that challenge the moral and legal integrity of the state. Rather than a jus post bellum this points to a lex pacificatoria that has relevance wherever projects of state transformation are asserted.
C. Is a jus post bellum desirable?
These practical problems prompt the question of whether a new “third way” regime in the form of a clearly articulated jus post bellum is desirable. It can be argued that the partial nature of the lex pacificatoria leaves vital room for negotiations, and that the consent of the parties to a conflict to new political and legal arrangements is vital to ending the conflict. Rather than constituting lex ferenda that requires to be developed, I seek here to argue that the project of legal regulation of transition requires an approach to international law that is capable of moving beyond binary categories of lawful/unlawful, war/peace, or domestic/international and the notion of enforcing particular outcomes to negotiated transitions.
There are advantages to having international law as a partial guide that attempts to suggest normative requirements rather than prescribe. Guidelines for peace agreement content may be more appropriate to enabling negotiated solutions than developing international law so as to require particular substance. A broad sketching of the possible parameters of the relationship between accountability and amnesty, exhortations to include women, and “best practice” guidance on the return of refugees and displaced persons leave some room for the parties to negotiate solutions with some flexibility. Binding international legal standards making detailed provision on what is required would effectively operate to require a particular blueprint of any political deal, narrowing the parties’ room to maneuver: the more law specifies peace settlement terms, the less the parties are able to negotiate. Development of these standards into a fully-fledged new regime would run the risk of effectively establishing legal pre-requisites to negotiations. Ends to war that are ambiguous in justice terms are often preferable to protracted (p.201) intra-state conflict with little just-war basis and both sides often targeting civilians as a central tactic. While a more flexible approach to what peace settlements should provide for in human rights terms appears weaker than a clear normative injunction, and may indeed result in a rather less than satisfactory result on many issues, what is lost in substance may be gained in the commitment and ability to implement what little is agreed.
More positively, the partially formed state of the lex pacificatoria may assist and enable international mediators to support and move forward some normative boundaries to peace negotiations. At present, the “new law” of peacemakers operates as a holding device for disagreement over what law and conflict resolution requires and should require. For example, in the area of transitional justice, it holds together the idea that both accountability and amnesty are useful and permissible and some sense of where the line should be drawn between them. In the undefined middle space lie possibilities for negotiated settlement. Moving to some sort of clear definition of the permissible space for negotiation in between would expose the lack of international consensus on what that space is, reinvigorating the pull to either pole and perhaps excluding the middle ground. At present the middle ground exists as a form of “détente” between competing notions of how peace and justice should be reconciled—the detent held in place by agonistic discourse between different conceptions of what conflict resolution, morality and law require.
IV. Situating Jus Post Bellum within Wider Discussions of International Law’s Future Directions
While the label jus post bellum situates legal developments with reference to the laws of war, it also situates the discussion over the role of international law post bellum within broader debates over the nature of the international legal system. These debates involve competing views of how best to re-conceive international law beyond its traditional Westphalian conceptualization as a law between states. In suggesting a new regime, the jus post bellum rubs up against competing visions of what the post-Westphalia concept of international law is and should be. How one understands the relationship of jus post bellum to the changing nature of international law, affects one’s view of the legitimacy and usefulness of the jus post bellum project, but it also affects how one might approach any attempt to develop and clarify the law.
Several different conceptions of the post-Westphalian international legal system have been argued to be at play: international law as a law of regimes in which regime experts are empowered to make political decisions under cover of law; international law as now requiring liberal democratic outcomes perhaps supplemented by its capacity to now recognize the subjectivity of the person; international law as realist uni-polar hegemony; and international law reconceived in terms of projects of global administration.51 Each of these competing visions can be understood to situate and understand a jus post bellum differently, with different conclusions as to its development. A short discussion illustrates. (p.202)
A. International law as law of regimes
Arguments for a new international legal regime could be understood to contribute to the creation of international law as fragmented into regimes, this fragmentation replacing a concept of international law as the law of states.52 If the project of international law is seen as having moved from the “international law” of states to the “international law of regimes,” then the creation of a new regime may perhaps be understood as inevitable but will be evaluated differently by those who think specialist regimes are a useful development of international law and those who are concerned about international law’s fragmentation. Beyond a general concern with fragmentation, harsher critiques of international law as the “law of regimes” have been made, namely that understanding international law as a law of regimes repositions international lawyers as regime experts, and the politics and majesty of international law become lost in a series of inter-regime battles approached as technocratic projects.53 From this point of view, even the technocratic project of “fixing messes” by clarifying post-conflict soft law as a jus post bellum has a politics: the politics of obscuring what is at stake in regime disputes of experts through arguing over inter-regime boundaries.54
B. Liberal international law
Alternatively, if the post-Westphalian project of international law is viewed as the international promotion, and even requirement, of liberal statehood, then one may view the current lex pacificatoria’s incomplete nature as a way-station toward achieving a clearer jus post bellum. But this conception of international law’s future will connect development of the jus post bellum to the promotion of liberal democracy as an outcome. The project of embracing and building a new jus post bellum, from this perspective, is very clearly tied up with ensuring that international law promotes the emergence of a liberal democratic state and so would develop the jus so as to ensure that such a state is delivered. Thus, some of the more fluid dimensions of the lex pacificatoria as a tool of navigation between the international and the domestic, times of conflict and times of peace, would be rejected in preference of a notion of jus post bellum exceptionality as a permitted temporary exceptionalism, bounded by its justification as in service to a liberal democratic outcome. For example, power-sharing and group rights might be tolerated short term, but only in so far as they can be justified as necessary to move towards a more classic form of liberal democracy which is suspicious of group accommodation.55 Similarly, short-term amnesties might be tolerated with a pressure to move to full human rights accountability for all, as the threat of conflict subsides. Elements of both these approaches can be seen in existing human rights case law, as discussed. (p.203) Moreover, the liberal international lawyer may be predisposed to reasserting the state as the only appropriate power-holder, whose monopoly on the use of force must be bolstered by requiring the punishment of non-state actors and installing a standard set of legal and political institutions—again with some evidence of the International Criminal Court in paying this “claw-back” role.
However, if the development of liberal peacemaking is viewed skeptically, these attempts may be resisted in favor of acknowledging and working with prevailing domestic power-structures—even when profoundly illiberal, while understanding the contingent nature of both state and non-state legitimacy. In fact, those who take this view argue that such a project will inevitably result in any case: case studies question whether what emerges from liberal peacemaking practices is in fact “liberal peace” or a hybrid variant where top-down imposition of liberal institutions competes with bottom-up resistance operating to preserve indigenous power structures, which often subvert the liberal peacemaking project.56 As a result, scholars such as Mac Ginty suggest that international interveners should remain more open-minded as to the legitimacy of local forms of political organization, become more creative in responding to these forms of legitimacy, and less assured and ready to roll out liberal international blueprints.57 The role of law, from this perspective, should be one of a limited ambition aimed at constructive engagement with the dynamic of imposition and resistance, rather than an attempt to require, ever more militarily forcibly, a move towards Western liberal values and institutions in situations where all the political pre-requisites are missing.
C. International law as uni-polar hegemony
There are also those who may be skeptical of a jus post bellum on realist grounds, namely that its strong association with the justifications for international intervention means that it cannot be separated from uni-polar attempts to pursue the interests of the United States and its allies, and that its development and application cannot resist being subverted to those ends. From this perspective, the move from existing regimes of human rights and humanitarian law to some sort of merged regime may be viewed suspiciously as enabling their selective application in pursuit of the ambitions of the international hegemon as the example of retaining administrative detention while rejecting the wider constraints of the law of occupation, or resisting human rights standards with respect to international actors seeking to transform the domestic landscape. The case of Iraq illustrates the potential conflicts that can result from attempts to legislate new jus post bellum regimes by UNSC Resolution and the conflicts that can result between those resolutions, the UN Charter and human rights standards promulgated by the UN (p.204) or other regional organizations. These are conflicts for which there is no clear body capable of providing authoritative resolution in a way that is persuasive across all the competing potential sites of authoritative interpretation.
D. Developing international law as project
A final approach to the relationship of ius post bellum with international law might involve reconceiving the jus post bellum as a discursive legal project, rather than an attempt to fashion a new regime. Jus post bellum might be a way of understanding how legal principles inform situations or come to assert themselves. An analogy can be made to the “Global Administrative Law” project, which considers whether and how free floating principles of administrative law might operate to govern “global administrative spaces” that exist beyond the reach of domestic law and yet are largely unregulated by international law as traditionally conceived.58 The global administrative law project stands as project of exploration rather than concrete legal proposal—in some articulations at least. However, it also stands as a caution and alternative to larger “C” projects of trying to fashion a more holistic form of international constitutional law as a new international legal order. In contrast to international constitutional law proponents, the global administrative law project attempts to remain relatively open as to whether the developments it charts are capable of delivering the kind of legitimacy that international law looks for as it cuts free from its Westphalian sources of legitimacy rooted in the consent of states.59 The global administration law project can remain neutral as to whether it is possible to develop global administrative law, or whether it must remain a ‘project’ where instances of global administrative law can merely be observed and embraced as part of a dynamic of international legal pluralism. As a project of legal pluralism, global administrative law does not need to solve all problems of authority because it assumes that a new hierarchical ordering of international law that would replace the Westphalian model is just not possible, and that authority will always have to be negotiated between different sites of authority.60
It would be possible to similarly reconceive of the jus post bellum concept as a heuristic device for understanding the dilemmas of how law applies to transitions. This incarnation would bring it closer to the concept of lex pacificatoria. This approach opens up the possibility of saving jus post bellum from the impossibility of its regulatory ambition by re-inventing it as discussion of the possibility of regulation. To some extent, the philosophical exploration of jus post bellum in attempting abstract articulations of what should be already admits its own aspirational quality.
The idea that jus post bellum might best be understood as a way of talking about the competing moral, legal, and political imperatives of peacebuilding brings the concept close to that of lex pacificatoria, which I return to defend. The term lex pacificatoria (p.205) acknowledges that international law may usefully be shaped by conflict resolution innovations, even as it attempts to shape settlement terms, and that it is important to understand the two-way nature of the interface. In remaining open to viewing both those parties to the conflict and international actors as peace-makers capable of the generation of pluralist and competing legal standards, the term lex pacificatoria also points to the contingent nature of new ad hoc legal developments and the possibility both for them to be further developed into new normative understandings, but also the real possibility of retreat. In contrast to the more robust notion of jus post bellum, the conceptualization of the lex pacificatoria does not signal a fully-fledged regime as a possible, or desirable, end point of current developments but views the law as part of a broader domestic and international negotiation over the end point of transition and the democratic legitimacy of the polity that results. The term, in remaining open as to the future, rather than automatically equating resolution of the indeterminacy of current regulation of post-conflict dilemmas by international law with being “a good thing,” views the ambiguities of the law as deriving from agonistic processes of challenge and counter-challenge between different domestic actors, and between domestic actors and international actors. However, the term also is more than discursive as the emergent legal re-articulations of international law attempt to sketch out some broad parameters within which negotiated settlements should fall.
The term lex pacificatoria, in contrast to jus post bellum as a new legal regime, signals openness to the possibility that the useful purpose of international legal regulation of peace settlements is not to regulate negotiation outcomes, but rather to set out such broad normative parameters that support the idea that negotiated outcomes should be both capable of implementation and accord with some sense of justice, while leaving room for the contestation over what concepts such as “accountability,” “justice”, and even “peace” require.
It would be possible to use the term jus post bellum in this same way and this, in my view, would be its most useful invocation. The discussion of the possibility of jus post bellum is useful to better understanding the relationship of international law and international organizations who claim to uphold it to the resolution of intra-state conflict. However, in my view the term lex pacificatoria provides a better descriptive starting point because it better captures the dynamic relationship of international law to peace settlements and their implementation. Ultimately, however, it is not important to have a battle over Latin terms if we can recognize and counteract the ways in which the names we choose start to tell stories about the current state of play and the law’s future directions and ambitions.
In my view, what is important to recognize in our discussion of international law’s possibilities is that its most important role may be to hold open the middle space of political compromise and contestation over concepts such as legitimacy, democratic participation, and effective accountability rather than trying to proscribe transition in a new legal regime. This space, paradoxically, might best be held open by resisting projects of legal clarification and development, in favor of living with law’s partial application because we view uncertain legal formulations as able to articulate the importance of normative concepts such as accountability or even democratic participation, while also recognizing that in practice such concepts can only come into being by agreement (p.206) between people and groups of people who hold widely differing views as to what they entail. This vision of law’s role requires letting go of the concept of legal regulation of peace agreement practice within binary categories of lawful and unlawful and embracing a more messy, uneasy, and uncertain world of negotiated justice that must harmonize a seemingly impossible dual commitment to a normative understanding of what justice requires and a commitment to on-going negotiation over what justice means.
(1) Michael Walzer, Arguing About War (Yale University Press 2006); Brian Orend, “Ius Post Bellum: A Just War Theory Perspective” in Carsten Stahn and Jann K. Kleffner (eds), Jus Post Bellum: Towards a Law of Transition From Conflict to Peace (Springer Verlag 2008); Larry May, After War Ends: A Philosophical Perspective (Cambridge University Press 2012); this volume.
(2) Stahn and Kleffner, Jus Post Bellum (n. 1), and in particular Stahn’s essay at 93–114. See also Antonia Chayes, “Chapter VII½: Is Jus Post Bellum Possible?” (2013) 24 European Journal of International Law 291; Guglielmo Verdirame, “What to Make of Jus Post Bellum: A Response to Antonia Chayes” (2013) 24 European Journal of International Law 307. Both Chayes and Verdirame engage with jus post bellum as a potential legal norm imposing an obligation to repair and reconstruct.
(3) Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford University Press 2008). See also Christine Bell, “Peace Settlements and International Law: From Lex Pacificatoria to Jus Post Bellum” in Nigel D. White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law: Jus Ad Bellum, Jus in Bello and Jus Post Bellum (Edward Elgar 2013).
(5) See Carsten Stahn, “‘Jus ad bellum,’ ‘jus in bello’...‘jus post bellum’?—Rethinking the Conception of the Law of Armed Force,” (2007) 17 European Journal of International Law 991. For more recent work: Chayes, “Chapter VII½” (n. 2); Verdirame, “What to Make of Jus Post Bellum” (n. 2); Ruti Teitel, “Rethinking Jus Post Bellum in an Age of Global Transitional Justice: Engaging with Michael Walzer and Larry May” (2013) 24 European Journal of International Law 335.
(7) See e.g. General Framework Agreement for Peace in Bosnia and Herzegovina (Paris, 17 December 1995) (hereinafter referred to as “Dayton Peace Agreement”) which provided for a range of hybrid institutions including banks and judges.
(8) Christine Bell, “Post-conflict Accountability and the Reshaping of Human Rights and Humanitarian Law” in Orna Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011).
(10) See e.g. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art. 1; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) (24 October 1970); Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res. 1514 (XV) (14 December 1960); Charter of the United Nations (1945) Art. 2(4).
(11) Cf. Marc Weller, “Settling Self-determination Conflicts: Recent Developments” (2009) 20 European Journal of International Law 111; Jan Klabbers, “The Right to be Taken Seriously: Self-Determination in International Law” (2006) 28 Human Rights Quarterly 186.
(12) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, UNGA Res. 47/135 (18 December 1992), UN Doc. A/47/49, annex (hereinafter referred to as “UN Declaration on Minorities”) Arts 2(3) and 5 (effective participation); Declaration on Rights of Indigenous Peoples, UNGA Res. 61/295 (13 September 2007), UN Doc. A/RES/61/295 (hereinafter referred to as “UN Declaration on Indigenous Peoples”); Council of Europe, Framework Convention on the Protection of National Minorities (1 February 1995, CETS no. 157) (hereinafter referred to as “Framework Convention”).
(13) UN Security Council (UNSC) Res. 1325, Resolution on Women, Peace and Security (2000), UN Doc. S/RES/1325 (31 October 2000). See also other subsequent resolutions (on UN Women website <http://www.unwomen.org/about-us/about-un-women/> (accessed 7 May 2013)).
(14) See e.g. UN Commission on Human Rights, Guiding Principles on Internal Displacement (11 February 1998) UN Doc. E/CN.4/1998/53/Add.2 (hereinafter referred to as “Guidelines on the Internally Displaced”); P. Sérgio Pinheiro, “Final Report of the Special Rapporteur, Principles on Housing and Property Restitution for Refugees and Displaced Persons, Annex: Principles on Housing and Property Restitution for Refugees and Displaced Persons” (2005) UN Doc. E/CN.4/Sub.2/2005/17. See also Brookings Institution, Addressing Internal Displacement in Peace Processes, Peace Agreements and Peace-Building (Brookings Institute–University of Bern 2007); Gerard McHugh, Integrating Internal Displacement in Peace Processes and Agreements (Brookings Institute 2010).
(15) For peace agreement provision, see e.g. Dayton Peace Agreement (n. 7) annex 7, “Agreement on Refugees and Displaced Persons” Art. 1; Comprehensive Agreement concluded between the Government of Nepal and the Communist Party of Nepal (Maoist) (21 November 2006); Arusha Peace and Reconciliation Agreement for Burundi (28 August 2000).
(18) See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977) 1125 UNTS 609 Art. 6(5); Louis Joinet, “Report of the Special Rapporteur, The Administration of Justice and the Human Rights of Detainees, Question of the Impunity of Perpetrators of Human Rights Violations, Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity” (1997) UN Doc. E/CN.4/Sub.2/1997/20/Rev.1, Annex II Principle 25.
(19) See e.g. Joinet, “Report of the Special Rapporteur” (n. 18); see also, UN Commission on Human Rights (UNCHR) Res. 2005/35 (2005), “Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” UN Doc. E/CN.4/2005/L.10/Add.1; UNCHR Res. 2004/34 (2004), “The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms” UN Doc. E/CN.4/2004/127.
(20) See e.g. the recent decision of the Inter-American Court of Human Rights in Case of the Massacres of El Mozote and nearby places v. El Salvador (Merits, reparations and costs) (25 October 2012) IACtHR Series C No. 252, paras 283–96; and in particular the concurring opinion of Judge Diego Garcia-Sayán, which suggests that thus far, the Inter-American Court has not had to address the context of an amnesty agreed as part of an attempt to have a legitimate peace versus justice compromise, and suggesting that some level of amnesty might be tolerated if crafted in a good faith attempt to provide for both justice and peace. Both opinions available online at the IACtHR website <http://www.corteidh.or.cr/pais.cfm?id_Pais=17&CFID=2154010&CFTOKEN=38471785>.
(22) See e.g. Report of the Secretary General, “Supplement to An Agenda for Peace, Position Paper of the Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations, Report of the Secretary-General” (1995) UN Doc. A/50/60-S/1995/1; UN, “Report of the Panel on United Nations Peace Operations” (2000) UN Doc A/55/305-S/2000/809.
(23) David Wippman, “Treaty-based Intervention: Who Can Say No?” (1995) 62 University of Chicago Law Review 607.
(24) Eva Bertram, “Reinventing Governments: The Promise and Perils of United Nations Peace Building” (1995) 39 Journal of Conflict Resolution 387.
(25) Jan Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press 2009) 271–93.
(26) For example, allegations of torture and execution against Belgian, Italian and Canadian UN troops in Somalia (1992–1995), Commission of Inquiry into the Deployment of Canadian Forces to Somalia, “Dishonoured Legacy: The Lessons of the Somalia Affair: Report of the Commission of Inquiry Into the Deployment of Canadian Forces to Somalia” (1997, Minister of Public Works and Government Services Canada); UN Secretary General, “Special Measures for Protection from Sexual Exploitation and Sexual Abuse” (2007) UN Doc. A/61/957, detailing sexual exploitation and related offences in the UN system in 2006, including sexual assault and sex with a minor.
(27) See e.g. Agreement between the United Nations Interim Administration in Kosovo (UNMIK) and the Council of Europe on Technical Arrangements Related to the Framework Convention for the Protection of National Minorities (23 August 2004) <http://www.unhcr.org/refworld/country,,,MULTILATERALTREATY,SRB,,,0.html> (accessed 7 May 2013). For a full body of reports and Committee of Ministers resolutions pursuant to this agreement, see <http://www.cpt.coe.int/en/states/srb.htm> (accessed 7 May 2013); Agreement between the UNMIK and the Council of Europe on technical arrangements related to the European Convention on the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (23 August 2004) <http://www.unhcr.org/refworld/country,,,MULTILATERALTREATY,SRB,,,0.html> (accessed 7 May 2013). See further, UNMIK, Press Release, UNMIK/PR/1216 (Pristina, 23 August 2004)<http://reliefweb.int/report/serbia/kosovo-unmik-and-council-europe-sign-two-agreements> (accessed 7 May 2013). These agreements expressly note in their preambles that they do not make UNMIK a “party” to the treaty in question.
(28) See e.g. Françoise Hampson, “Administration of Justice, Rules of Law and Democracy, Working paper on the Accountability of International Personnel Taking Part in Peace Support Operations” (2005) UN Doc. E/CN.4/Sub.2/2005/42, para. 79.
(31) See further, Steven R. Ratner, “Foreign Occupation and International Territorial Administration: The Challenges of Convergence” (2005) 16 European Journal of International Law 695, 702–3.
(32) See further, Adam Roberts, “Transformative Military Occupation: Applying the Law of War and Human Rights” (2006) 100 American Journal of International Law 580; Al-Jedda v. Secretary of State for Defence  UKHL 58; Al-Jedda v. United Kingdom App. no. 27021/08 (ECtHR, 8 July 2011) (for some of the controversies that have arisen as regards attempts to design a new governing legal frame through UNSC resolution).
(33) See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977) 1125 UNTS 3 Art. 37; 1907 Hague Convention IV Respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land (adopted 18 October 1907) 187 CTS 227.
(34) See combined cases Prosecutor v. Morris Kallon, Brima Bazzy Kamara (Judgment) SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E) (Special Court for Sierra Leone) (13 March 2004) para. 72.
(36) Hugo Grotius, On the Law of War and Peace (John W. Parker tr., Cambridge 1853).
(37) The etymology of the very word “peace” comes from the classical Latin pacim or pax, which meant “treaty of peace, tranquility, absence of war,” closely related to the Proto-European-Indo concept of pak—to fasten, in turn related to pacisci which meant “to covenant or agree.” See online etymology dictionary at <http://www.etymonline.com/index.php?search=peace&searchmode=none> (accessed 7 May 2013). This dictionary also states that the word came to replace the Old English frið, also sibb, which also meant “happiness;” cf. Charles Talbut Onions, The Oxford Dictionary of English Etymology (Clarendon Press 1966).
(40) Alan E. Boyle and Christine Chinkin, The Making of International Law (Oxford University Press 2007).
(41) See UN Human Rights Council Res. 9/10 (2005) <http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_9_10.pdf> (accessed 7 May 2013), which started life as an attempt to articulate transitional justice principles, but in its end format resulted in these rather vague exhortations to the process of developing a UN position on transitional justice.
(42) The Office of the High Commissioner of Human Rights defines transitional justice as follows: “Transitional justice consists of both judicial and non-judicial mechanisms, including prosecution initiatives, reparations, truth-seeking, institutional reform, or a combination thereof. Whatever combination is chosen must be in conformity with international legal standards and obligations.” See Office of the High Commissioner of Human Rights website <http://www2.ohchr.org/english/issues/rule_of_law/transjustice.htm> (accessed 10 June 2013). The UN Secretary General’s 2004 “Report on Transitional Justice and the Rule of Law” 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.” UN Secretary General, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies” (2004) UN Doc. S/2004/616, para. 8. These attempts to define transitional justice in terms of mechanisms appear designed to avoid difficult questions of the extent to which transitional justice implies a revision of human rights norms.
(43) Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis (Cambridge University Press 2006).
(44) Transitionology literature defines transition in terms of a short period of time between the initiation of a point of change, and democratic elections, see Juan Linz, “Transitions to Democracy” (1990) 13 The Washington Quarterly 143, while consolidation of democratization literature attempts to define a broader transition as including the process of “consolidation of democracy,” a temporal period that is much more contested. See e.g. Samuel P. Huntington, The Third Wave (University of Oklahoma Press 1992) 266; Ben R. Schneider, “Democratic Consolidations: Some Broad Comparisons and Sweeping Arguments” (1995) 30 Latin American Research Review 215, 219; Carsten Q. Schneider, The Consolidation of Democracy: Comparing Europe and Latin America (Routledge 2008).
(45) Christine Bell, “Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’” (2009) 3 International Journal of Transitional Justice 5.
(46) Cf. Ždanoka v. Latvia App. no. 58278/00 (ECHR, 16 March 2006) with Adamsons v. Latvia App. no. 3669/03 (ECHR, 24 June 2008) and Ta˘nase v. Modlova App. no. 7/08 (ECHR, 27 April 2010). See further Michael Hamilton, “Transition, Political Loyalties and the Order of the State” in Antoine Buyse and Michael Hamilton (eds), Transitional Jurisprudence and the ECHR: Justice, Politics and Rights (Cambridge University Press 2011) 151–84.
(47) Sejdić and Finci v. Bosnia & Herzegovina App. nos 27996/06 and 34836/06 (ECHR, 22 December 2009).
(50) For a discussion of these developments, see Anne Orford, “Commissioning the Truth” (2006) 15 Columbia Journal of Gender and Law 851; Stephanie Golob, “Volver: the Return of/to Transitional Justice Politics in Spain” (2008) 9 Journal of Spanish Cultural Studies 127; Christopher Lamont, “Justice and Transition in Mississippi: Opening the Books on the American South” (2010) 30 Politics 183.
(51) Cf. Neil Walker, “Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders” (2008) 6 International Journal of Constitutional Law 373.
(52) Martti Koskenniemi, “The Fate of Public International Law: Between Technique and Politics” (2007) 70 Modern Law Review 1.
(54) Koskenniemi, “The Fate of Public International Law” (n. 52); David Kennedy, “The Mystery of Global Governance” in Jeffrey L. Dunoff and Joel P. Tracthman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009).
(55) Cf. Anne-Marie Slaughter, “Pursing the Limits of the Liberal Peace: Ethnic Conflict and the ‘Ideal Polity’” in David Wippman (ed.), International Law and Ethnic Conflict (Cornell University Press 1998).
(56) Roger Mac Ginty, “Hybrid Peace: The Interaction between Top Down and Bottom Up Peace” (2010) 41 Security Dialogue 391.
(57) Mac Ginty, “Hybrid Peace” (n. 56) 391. See also Roger Mac Ginty, International Peacebuilding and Local Resistance (Palgrave Macmillan 2011); Volker Boege, Anne Brown, Kevin Clements, and Anna Nolan, “On Hybrid Political Orders and Emerging States: What is Failing—States in the Global South or Research and Politics in the West?” in Martina Fisher and Beatrix Schmelzle (eds), Building Peace in the Absence of States: Challenging the Discourse on State Failure, Berghof Handbook Dialogue Series, no. 8 (Berghof Research Centre 2009) and responses to it <http://www.berghof-handbook.net/documents/publications/dialogue8_boegeetal_lead.pdf> (accessed 7 May 2013).
(58) See e.g. Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law” (2005) 68 Law and Contemporary Problems 15.
(59) See Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press 2012).