Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-Making Powers

By Boon, Kristen | McGill Law Journal, June 2005 | Go to article overview
Save to active project

Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-Making Powers

Boon, Kristen, McGill Law Journal

This article distinguishes the traditional concepts of jus ad bellum and jus in bello (law of war and law in war) from the new doctrine of jus post bellum (law of post-war reconstruction). The author examines jus post bellum in light of the recent non-consensual legal reforms in Iraq, Kosovo, and East Timor to demonstrate how international bodies and coalitions are increasingly assuming legislative functions, legitimately and otherwise, in the context of their duties as interim administrators. The large degree of discretion conferred upon these administrators does not always ensure adequate levels of trusteeship, accountability, and proportionality, which are integral to the stability of post-conflict zones. The author contends that a distinct jus post bellum framework that incorporates these principles of justice would allow for a more systematic and comprehensive approach to legal reform in occupied territories, which would in turn facilitate the transition to legitimate self-government.

Cet article distingue les concepts traditionnels de jus ad bellum et de jus in bello (le droit a la guerre et le droit darts la guerre) de la nouvelle doctrine du just post bellum (droit de la reconstruction apres la guerre). L'auteur se penche sur le jus post bellum suite aux reformes juridiques non consensuelles en Irak, au Kosovo et an Timor oriental pour montrer comment les coalitions et organes internationaux s'attribuent de plus en plus souvent des fonctions legislatives--legitimement ou non--parmi leurs taches en tant qu'administrateurs interimaires. Le degre eleve de discretion dont beneficient ces administrateurs ne garantit pas toujours des niveaux adequats de saine gestion, de responsabilite et de proportionnalite, essentiels a la stabilite de territoires qui ont ete le theatre d'un conflit. L'auteur avance qu'un cadre de jus post bellum distinct incorporant ces principes de justice conduirait a une approche plus systematique et complete a la reforme juridique dans les territoires occupes, ce qui a son tour faciliterait la transition vers un gouvernement autonome legitime.

Introduction: Ethics and Law Making in Occupied Territories
     A. Two Distinctions: Identity of the Actor and Nature of the
     B. Jus Post Bellum
     C. The Rule of Law and Some Principles of a Jus Post Bellum
        1. Trusteeship
        2. Accountability
        3. Proportionality

 II. The Context of Law Making in Post-conflict Zones and
     Occupied Territories

III. The Authority of International Actors to Alter Domestic
     Laws and Legal Systems
     A. The Legislative Capacities of Occupying Powers
     B. The Ineffectiveness of the Legislative Provisions of the
        Laws of Occupation and the Principles of Jus Post Bellum
     C. The Contemporary Occupant: The CPA in Iraq
     D. The Legislative Capacities of the UN Civil Administrations:
        UNMIK and UNTAET
     E. The Scope of the Legislative Power of the UN Missions
     F. Jus Post Bellum Principles in the UN Missions

 IV. Legal Reform and Proportionality

  V. Conclusion

I. Introduction: Ethics and Law Making in Occupied Territories

Legal reform in occupied and administered territories has become a key element in post-intervention reconstruction plans. In Kosovo, East Timor, and Iraq, international organizations, occupying powers, and private "hired guns" are taking on the business of law making. The legitimacy and success of post-conflict interventions are closely linked to the ability of the intervening powers to establish functioning legal systems and to ensure law and order. As the United Nations secretary-general stated in his 2004 report on the rule of law in post-conflict zones, "Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives." (1) Where this exercise has failed, the legitimacy and authority of interim international administrations have faced serious challenge.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-Making Powers


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?