Remarks by Larry May
May, Larry, Proceedings of the Annual Meeting-American Society of International Law
Jus post bellum is a relatively new term in international law debates, although the term has deep roots in the Just War tradition. Indeed, there were historically three branches of the Just War: jus ad bellum, jus in bello, and jus post bellum, as we can see from the early seventeenth-century scholastic writer Francisco Suarez, who said that "due proportion must be observed in [war's] beginning, during its prosecution, and after victory." (1) In my recent book, I argue that there are six categories of the jus post bellum: reconciliation, retribution, rebuilding, restitution, reparations, and proportionality. (2) Unlike the jus ad bellum and the jus in bello, the jus post bellum is still only a matter of lex ferenda, not lex lata, although documents about transitional justice probably come closest to what some of jus post bellum lex lata might look like.
Achieving reconciliation at the end of armed conflict or war is generally quite difficult. But achieving reconciliation in a society where terrorism has reigned is especially challenging. In my remarks I will explain some of the special difficulties faced by post-war societies after terrorist armed conflict. I will focus especially on when the post bellum period begins, how to think of justice in such situations, and how to conceive of the role of criminal trials in such a period. The guiding idea will be how to achieve reconciliation in a society that has seen civilians targeted and where such strategies may resume in the near future.
FIRST PAST THE "POST"
Deciding when war or armed conflict has ended is not always easy. Short of an official truce signed by all parties, which rarely happens today, wars and armed conflicts often peter out rather than come to an abrupt end. Of course, this raises interesting conceptual questions about whether the jus post bellum can be a distinct period or set of issues since the "post" in jus post bellum is itself so hard to determine and seems to blend with the jus in bello. This is also a potential practical problem because how prisoners are supposed to be treated depends on whether war is still raging or is now over. And terrorism changes many things, making what is hard to see during the fog of war even more shadowy.
The first, and arguably most difficult, jus post bellum question faced when there has been a terrorist war or armed conflict is when it can be said to have ended. Because of the irregular nature of terrorism, as contrasted with armed conflicts among states, it is very unclear whether terrorist armed conflict can ever be said to have ended unless there has been total victory. And even then it is not clear what victory means--since terrorist cells may merely be temporarily inactive rather than actually defeated. The organizational structure of terrorist groups, especially terrorist groups that are highly decentralized, means that there is often no leadership that is authorized to call for a truce. And even if there is such a structure, there are often splinter groups that do not necessarily follow the dictates of that leadership. Such difficulties are real and important but do not necessarily cause intractable problems, at least in certain domains.
When considering reconciliation especially, it does not matter whether the armed conflict has ended for good--reconciliation needs to be started as early as possible, as it often takes so very long to be achieved. Political reconciliation involves bringing parties to the point where they respect each other's rights and can live peaceably together. Starting the process of reconciliation before armed conflict or war has ended can often be a very good thing, although often highly dangerous. Reconciliation takes a long time to be achieved because the animosity felt between two peoples after armed conflict or war is not something that can quickly dissipate. Terrorist violence will make such animosity worse since terrorism almost always involves the targeting of innocent civilians, or at least disregard for their safety. …