Remarks by Fionnuala Ni Aolain
Aolain, Fionnuala Ni, Proceedings of the Annual Meeting-American Society of International Law
My comments are directed first at the utility of a jus post bellum framework in tackling post-conflict contexts and transitions. My remarks in this regard focus on what may be obscured in the move to using a new conceptual placeholder in contexts where we might first ascertain what law we have now, how effective it is, and what augmentation if any is required. Second, I discuss the terminology of terrorism and what the use of this linguistic, conceptual, and legal scaffold achieves. Finally, I use the specific example of Northern Ireland to ground some reflections on the utility of the terrorism and jus post bellum frameworks.
I suggest that the pressing legal conversation concerning contemporary conflict should be less about the utility of developing a new framework of jus post bellum, but rather should focus on the legal question of identifying and then managing the legal status of armed conflict. This is in some ways a preliminary and old-fashioned step--one historically avoided by states in the context of internal armed conflict. Let me suggest that it is in significant part the failure, inability, or lack of incentives for states to "call" the status of conflict that leads to a plethora of unresolved legal and political issues both during peace agreement negotiations and in the aftermath of conflict. (1) Situations which broadly constitute internal armed conflicts, whether of the Common Article 3 or the Protocol II variety, are also the sites where an overlap with a terrorism categorization is most likely to occur. These conflicts are also persistently associated with the most egregious human rights violations, characterized by inept and/or insufficient governance and increasingly requiring various forms of international and regional intervention.
A review of state practice post-World War II reveals that states confronted with internal insurgency, sizeable communal violence, or persistent low-level violence from a constant source will tirelessly claim that the problem faced is simply one of internal criminal or terrorist behavior, activating only the application of human rights law and domestic emergency law responses. By and large then, the negative precursor that frames the challenges we confront in the post-conflict environment is, I submit, one in which the law of war has been excluded or evacuated from the prior legal and political conversations. Many of these jurisdictions are in persistent derogation of international human rights treaties--and often fall within the category of permanent emergencies under national and international law. (2) In practice, there is a particularly high correlation between what I term "high-intensity" emergencies and situations of low-intensity internal armed conflict. As a result, the emergency label is maneuvered by governments to cover up extreme internal disorder, illegitimacy, or claims on the coherence of the state. The emergency claim may, at its extreme, become the chimera for regime illegitimacy. Moreover, the prolonged suspension of normal protections for citizens is often inimical to the original rationale for allowing states to limit the exercise of certain human rights. A failure to adequately distinguish the kind of armed conflict (or the prescient reality of conflict) taking place allows for a kind of slippage both in terms of the legal obligations owed by the parties (state and nonstate actors alike) and the limitations that follow for framing the end of the conflict--specifically on what legal basis endings can be negotiated. This substantially affects the resolution of issues in the post conflict setting--including but not limited to amnesty, truth recovery processes, accountability, reparations, security sector reform, and reconciliation.
Therefore, I suggest that a basic but critical step before we rush to create a new place holder in the post-conflict arena is to seek clarity on the legal and factual requirements that activate the applicability of international humanitarian law to low-intensity or persistent internal armed conflict. …