Remarks by Jennifer Easterday
Easterday, Jennifer, Proceedings of the Annual Meeting-American Society of International Law
WHAT IS JUS POST BELLUM?
Jus post bellum is the body of laws, norms, and principles that apply during the transition from war to peace. (1) One of its central goals is the establishment and maintenance of sustainable peace. The jus post bellum framework offers a way of unifying and reconceptualizing overlaps in laws that apply in post-conflict situations. It provides relational cohesion to its underlying laws and norms, and a basis for assigning responsibility for post-conflict obligations.
Jus post bellum is a holistic concept encompassing a spectrum of norms and rules. From a minimalist perspective, jus post bellum encompasses guiding principles and best practices. From a maximalist perspective, it could be conceived of as a system of law that encompasses concrete legal obligations.
It is helpful to think about jus post bellum and the questions it raises by breaking it down into its three foundational parts: "jus," "post," and "bellum."
The concept of "jus" offers a clear example of the idea of the jus post bellum spectrum based simply on the Latin definition of "jus." The term can mean "justice," a fairly broad and flexible concept, or it can mean a "system of laws," which is more fixed and bounded.
However one conceives of jus post bellum, it is important to note that even from a maximalist perspective, it is not a body of new laws. Jus post bellum is based on existing laws--including treaty obligations, customary international law, and soft law--that are applied during the transition from war to peace. These laws come from disparate legal frameworks, such as human rights, international humanitarian law, peace agreements, environmental law, property law, and others. Jus post bellum encompasses many norms, and in particular builds on norms that have considerable overlap with, but are distinct from, transitional justice and the responsibility to protect. Jus post bellum is also based on core principles such as sustainable peace, democratic inclusion, and justice.
When these existing rules, norms, and principles are applied during the transition from war to peace, they fall within the legal framework of jus post bellum. Thus, jus post bellum can clarify the responsibilities of all parties to the conflict and actors in the post-conflict context, whether third-party interveners, nonstate actors, international organizations, or the state upon whose territory the conflict is being fought. Each of these actors will have differing obligations arising out of jus post bellum laws and norms.
One of the real difficulties in discussing jus post bellum is the concept of "post." When does jus in bello end and jus post bellum begin? When does jus post bellum end and peacetime law begin?
Although these questions are important, inflexible temporal triggers do not drive jus post bellum. Taken broadly, jus post bellum as a concept could be said to "apply" prior to conflict, as it could serve as a guiding principle to help shape decisions to enter into war and encourage coherence in justifications for courses of action that have post-conflict consequences. For example, if a state knows that its military intervention is likely to lead to violent insurrection that threatens sustainable peace, jus post bellum obligations might shape policy decisions or provide a constraint on the resort to force.
Although its principles would apply during and before the conflict, its underlying laws and norms would be triggered more frequently during the process of transition from war to peace. While this transition is not always clear, there are various indicators that may suggest the beginning of the process and therefore the application of jus post bellum laws. Indicators suggesting that the transition to peace has begun could include:
* peace agreements
* cease-fire agreements
* Security Council resolutions
* lower intensity of fighting
* return of refugees
* official "political" declarations that the war has ended
* peace-building and reconstruction efforts such as DDR (Disarmament, Demobilization and Reintegration), security sector reform, or the start of criminal trials for crimes arising out of the conflict. …